Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available: (a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom. (b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice. (c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. (d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom. (f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful. (h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. It is the intent Upon receipt by a party of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event a written notice of any Proceeding or any action, suit, proceedings, claim, issue demand or matter therein with regard assessment against it which might give rise to which Indemnity will or could be sought under this under this Agreementa claim for Damages, such party (the Company's Charter or any "Indemnitee") shall give written notice thereof to the other obligation whatsoever party (the "Indemnitor") indicating the nature of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing such claim and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter thereintherefor; provided, however, that with respect failure to any Proceeding (or any claim, issue or matter therein), that was initiated prior give such notice shall not affect the Indemnitee's rights provided hereunder except to the Effective Date, extent the Indemnitee Indemnitor shall notify the Company promptly in writing within the later have been actually prejudiced as a result of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice")failure. The Indemnification Notice Indemnitor shall specify all facts known to have the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) right, at its option, exercisable within 10 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel, any such matter involving the Company asserted liability of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (Indemnitee as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming Indemnitor shall have acknowledged the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including Indemnitee to payment by its directors or Independent Counsel) to have made a determination prior the Indemnitor, subject to the commencement of next sentence. If the Indemnitor shall undertake to compromise or defend any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfiedasserted liability, it shall in any event be presumed that promptly notify the Indemnitee has at all times acted in good faith and in a manner he reasonably believed of its intention to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof do so, and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably agrees to cooperate fully with the personIndemnitor and its counsel in the compromise of, persons or entity making defense against, any such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter thereinasserted liability; provided, however, that the Indemnitor shall not settle any such asserted liability without the written consent of the Indemnitee. Notwithstanding an election to assume the defense of such action or proceeding, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the reasonable fees, costs and expenses of such separate counsel shall be payable by the Indemnitor, if (A) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitor within 20 days after notice of the institution of such action or proceeding or (B) the Indemnitor shall have authorized the Indemnitee to employ separate counsel at the Indemnitor's expense and the Indemnitor shall promptly assume and hold the Indemnitee harmless from and against the full amount of any Damage resulting therefrom. Notwithstanding anything herein to the contrary, the Indemnitor shall not be entitled to assume control of such defense but shall pay for the reasonable fees, costs and expenses of Indemnitee's legal counsel if (i) the claim for indemnification under this Agreement relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor, on the one hand, and Indemnitee on the other; (iii) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or equitable relief against Indemnitee; or (v) Indemnitee reasonably believes an adverse determination with respect to any settlement unless the Company shall have consented action, lawsuit, investigation, proceeding or other claim giving rise to such settlementclaim for indemnification would be detrimental to or injure the reputation or future business prospects of Indemnitee. In any event, which consent the Indemnitee and its counsel shall not be unreasonably withheldcooperate with the Indemnitor and its counsel. Anyone seeking to overcome this presumption The Indemnitee shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or right at its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled own expense to participate in the Proceeding at its own expensedefense of such asserted liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunland Entertainment Co Inc)
Claims for Indemnification. It is the intent of this Agreement to secure for the If any Investor Indemnitee rights of indemnity or Company Indemnitee (an "INDEMNITEE") shall believe that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under pursuant to this Agreement Section 7 in respect of any Damages, such Indemnitee shall give the appropriate Indemnifying Party (which for purposes hereof, in the case of an Investor Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall thereafter have set forth in reasonable detail and to the burden extent then known the basis for such claim for indemnification. The failure of persuasion by clear and convincing evidence such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity hereunder except to the extent that such failure adversely affects the right of the Indemnifying Party to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of such notice either (a) to acquiesce in such claim by giving such Indemnitee has written notice of such acquiescence or (b) to object to the claim by giving such Indemnitee written notice of the objection. If Indemnifying Party does not met the applicable standard of conduct to object thereto within such twenty (20) business day period, such Indemnitee shall be entitled to indemnification under this Agreementbe indemnified for all Damages reasonably and proximately incurred by such Indemnitee in respect of such claim. If the Indemnifying Party objects to such claim in a timely manner, the Company's articles of incorporation, the bylaws and other obligations senior management of the Company and Investor shall meet to indemnify attempt to resolve such dispute. If the Indmnitee pursuant to which dispute cannot be resolved by the Indemnitee is claiming senior management, either party may make a written demand for formal dispute resolution and specify therein the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure scope of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met dispute. Within thirty days after such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable lawwritten notification, the Indemnitee parties agree to meet for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty days after the one day mediation, either party may begin litigation proceedings. Nothing in this section shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerequire arbitration.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Phoenix Technologies LTD)
Claims for Indemnification. It If a claim for Damages (a “Claim”) is to be made by any Party hereto (the intent of this Agreement “Indemnitee”), such Indemnitee shall give written notice (a “Claim Notice”) to secure for the other Party (the “Indemnitor”) as soon as practicable after the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event becomes aware of any Proceeding fact, condition or any claim, issue or matter therein with regard event which may give rise to Damages for which Indemnity will or could indemnification may be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or any claimother legal action or otherwise, issue a “Third-Party Claim”), (i) the Indemnitor shall be entitled, if it so elects, at its own cost, risk and expense, (A) to take control of the defense and investigation of such Third-Party Claim and (B) to pursue the defense thereof by appropriate actions or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (proceedings, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnitee to handle and defend the same, and (ii) the Indemnitor shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld. In the event the Indemnitor elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 19, the Indemnitee may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim. If the Indemnitor fails to assume the defense of such Third-Party Claim in accordance with this Agreement within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnitee shall (upon delivering notice to such effect to the Indemnitor) have the right to undertake, at the Indemnitor’s sole cost, risk and expense, the defense, compromise and settlement of such Proceeding or claim, issue or matter therein with or without payment Third-Party Claim on behalf of money or other consideration) it shall be presumed and for the account of the Indemnitor; provided that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee Third-Party Claim shall not be entitled to indemnification under this Agreement with respect to any settlement unless compromised or settled without the Company shall have consented to such settlementwritten consent of the Indemnitor, which consent shall not be unreasonably withheld. Anyone seeking In the event the Indemnitor assumes the defense of the claim, the Indemnitor shall keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnitee assumes the defense of the claim, the Indemnitee shall keep the Indemnitor reasonably informed of the progress of any such defense, compromise or settlement. The Indemnitor shall be liable for any settlement of any Third-Party Claim effected pursuant to overcome and in accordance with this presumption shall have the burden Section 19 and for any final judgment (subject to any right of proof appeal), and the burden Indemnitor agrees to indemnify and hold harmless Indemnitee from and against any and all Damages by reason of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, such settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfuljudgment.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later bemadenolater than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and ofproofand the burden of persuasion ofpersuasion by clear and convincing evidence. Neither the failure of the ofthe Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conductofconduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conductofconduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the ifthe Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the ofthe Enterprise in the course of their oftheir duties, or on the advice of legal oflegal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and ofproofand the burden of persuasion ofpersuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the ofthe Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final offinal judgment may be successful if it ifit permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(eg) The termination of any ofany Proceeding or of any ofany claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the ofthe Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings claim shall arisearise for indemnification hereunder, to obtain indemnification under this Agreementany Seller Indemnified Party or Buyer Indemnified Party (collectively, the Indemnitee “Indemnified Party”) shall promptly notify the indemnifying party or parties (the “Indemnitor”) (which in the case of the Shareholders shall be the Company promptly in writing and in any event within thirty (30) days after Agent), of the Indemnitee has actual knowledge of claim and, when known, the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect the failure to any Proceeding (or any claim, issue or matter therein), that was initiated prior so notify the Indemnitor shall not relieve the Indemnitor of their obligation hereunder to the Effective Dateextent such failure does not result in actual and material prejudice to the Indemnitor. In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known notice to the Indemnitee giving rise to such indemnification right and Indemnitor shall specify, if known, the amount or an estimate of the amount of the liability (including estimated expenses) arising therefrom. In the event that the Merger is consummated, the Buyer Indemnified Parties must seek recovery of any Losses under this Article VII first against the Escrow Account and, to the extent permitted by Section 7.5 of this Agreement, thereafter against the Shareholders.
(b) Any Parent shall issue shares of Parent Common Stock (valued for such purpose at the average daily closing price per share of Parent Common Stock as reported on the NYSE Composite Transactions reporting system for the ten (10) consecutive trading days ending on and including the final trading day preceding the date on which the indemnification under this Agreement shall payment is to be made no later than thirty (30made) days after receipt by in satisfaction of its indemnification obligation to the Seller Indemnified Parties to the extent that Parent and the Company Agent mutually determine that the payment of cash to any Shareholder in satisfaction of such obligation could result in the Value of Stock Consideration being less than 45% of the Indemnification Noticesum of the Value of Stock Consideration and the amount of Non-Stock Consideration. For purposes of this paragraph, unless a determination is made within such thirty (30) day period by (Xi) the Board Value of Stock Consideration shall also include any shares of Parent Common Stock that are issued by a majority vote of a quorum consisting of directors who were not parties Parent to the Proceeding described Seller Indemnified Parties in the Indemnification Noticesatisfaction of Parent’s indemnification obligations and, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel solely for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes purpose of determining the right to indemnification under this Agreement. Whether or not “Value of Stock Consideration,” such shares shall be valued at the foregoing provisions lower of this Section 5(dclosing price of the Parent Common Stock as reported on the NYSE on the trading day completed on (x) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed date of issuance of such shares to the best interests Seller Indemnified Parties or (y) the Closing Date, and (ii) the amount of the Company. Anyone seeking to overcome this presumption Non-Stock Consideration shall have the burden of proof and the burden of persuasion include any cash payable by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect Parent to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and Seller Indemnified Parties in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement respect of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceindemnification.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
Claims for Indemnification. It is the intent of The procedures for indemnification under this Agreement to secure for the Indemnitee rights of indemnity that are will be as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be availablefollows:
(a) Whenever The Parent Indemnitee seeking indemnification hereunder (a “Claimant”) will promptly give notice to the Company of any Proceedings shall arisedemand, suit, assertion of liability or claim. If the claim relates to obtain indemnification an action, suit or proceeding filed by another Person against the Claimant (a “Third-Party Claim”), then such notice will be given by the Claimant within twenty (20) Business Days after written notice of such action, suit or proceeding is given to the Claimant and will include true, correct and complete copies of all suit, service and claim documents. The failure or delay of the Claimant to provide any such notice or deliver such copies will not release the Company from any of its obligations under this AgreementArticle IX unless (and then solely to the extent that) the Company is materially prejudiced thereby.
(b) With respect to claims solely between a Parent Indemnitee and the Company, the Indemnitee notice by the Claimant shall notify describe the claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Claimant. Following receipt of notice from the Claimant of a claim, the Company promptly in writing and in any event within will have thirty (30) days after the Indemnitee has actual knowledge to make such investigation of the facts constituting claim as the basis for such Proceeding Company reasonably deems necessary or any desirable, and the Claimant agrees to make available to the Company and its authorized Representatives all information relevant and necessary to substantiate the claim, issue except to the extent any attorney-client privilege would thereby be vitiated. If the Claimant and the Company agree at or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Dateexpiration of such thirty (30)-day period to the validity and amount of such claim, the Indemnitee shall notify then the Company will promptly in writing within pay to the later of (X) ten (10) days after Claimant the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge full amount of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known subject to the Indemnitee giving rise to such indemnification right terms and limitations hereof. If the Claimant and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made do not reach any lviii such agreement within such thirty (30) day period by (X) 30)-day period, then the Board by a majority vote of a quorum consisting of directors who were not parties Claimant may seek an appropriate remedy at law or in equity, as applicable, subject to the Proceeding described in terms and limitations hereof. If the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed Company fails to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties respond to the Proceeding described in the Indemnification Notice.
Claimant within such thirty (c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of 30)-day period then the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if agreed to the Indemnitee's action was based on the records or books of account full amount of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceclaim.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (Flyexclusive Inc.)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings claim shall arise, to obtain arise for indemnification under this AgreementSection 6 or Section 7.2, the Indemnitee person seeking indemnification (the “Indemnitee”) shall promptly notify (i) if sought under Sections 6.2 or 7.2, the Company promptly Securityholders’ Representative, or (ii) if sought under Section 6.3, the Buyer (as applicable, the “Indemnitor”), in writing and in any event within thirty (30) days after each case, of the Indemnitee has actual knowledge of claim and, when known, the facts constituting the basis for such Proceeding claim (a “Notice of Claim”). No delay or failure on the part of the Indemnitee in so notifying the Indemnitor shall relieve the Indemnitor of any claim, issue liability or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior obligation hereunder except to the Effective Dateextent of any damage or liability caused by or arising out of such delay or failure. In the event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of the liability (including estimated expenses) arising therefrom.
, to the extent then known by the Indemnitee. Within thirty (b30) Any indemnification under this Agreement days after delivery of a Notice of Claim, the Indemnitor shall deliver to the Indemnitee a response, in which the Indemnitor shall: (i) agree that the Indemnitee is entitled to receive all of the claimed amount (in which case the response shall be made no later than accompanied by a payment by the Indemnitor to the Indemnitee of the claimed amount, by check or by wire transfer; provided that if the Indemnitee is the Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnitor and the Indemnitee shall deliver to the Escrow Agent, within three (3) days following the delivery of the response, a written notice executed by the Buyer and the Securityholders’ Representative instructing the Escrow Agent to pay to the Buyer an amount of Escrow Funds equal to the claimed amount), (ii) agree that the Indemnitee is entitled to receive a portion of the claimed amount (in which case the response shall be accompanied by a payment by the Indemnitor to the Indemnitee of the amount so agreed upon, by check or by wire transfer; provided that if the Indemnitee is the Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnitor and the Indemnitee shall deliver to the Escrow Agent, within three (3) days following the delivery of the response, a written notice executed by the Buyer and the Securityholders’ Representative instructing the Escrow Agent to pay to the Buyer an amount of Escrow Funds equal to such agreed upon amount) or (iii) dispute that the Indemnitee is entitled to receive any of the claimed amount. Acceptance by the Buyer of partial payment of any claimed amount shall be without prejudice to the Buyer’s right to claim the balance of any such claimed amount. If the Securityholders’ Representative or the Buyer, as applicable, does not respond to a Notice of Claim within thirty (30) days after receipt by the Company of the Indemnification Noticesuch Notice of Claim, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties failure to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee respond shall be deemed to have acted in good faith if be an acceptance of the Indemnitee's action was based on the records or books of account ’s right to receive all of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise claimed amount set forth in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden Notice of proof and the burden of persuasion by clear and convincing evidenceClaim.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (Analogic Corp)
Claims for Indemnification. It is For the intent purposes hereof, an "Officer's Certificate" shall mean a certificate signed by any officer of this Agreement Parent and delivered to secure for the Indemnitee rights Escrow Agent and the Stockholder Representative: (i) stating that Parent has paid, incurred, sustained or accrued, or reasonably anticipates that it will imminently be obligated to pay, incur, sustain or accrue, Losses, (ii) specifying in reasonable detail the individual items of indemnity that are as favorable as may be permitted under applicable law, including without limitation Loss included in the Florida Statues and public policy of the State of Florida. Accordinglyamount so stated, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding date insofar as practicable each such item was paid, incurred, sustained or any claim, issue accrued or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant or the nature of the Tax Loss to which such item is related, and (iii) the amount of cash to be delivered to Parent (for the benefit of the pertinent Parent Indemnified Party) in compensation for such Losses. Upon receipt by the Escrow Agent at any claimtime on or before the Expiration Date of an Officer's Certificate, issue or matter thereinthe Escrow Agent shall, subject to the provisions of Section 8.3(c) and (d), deliver to Parent, as promptly as practicable, an amount of cash from the Escrow Fund equal to the amount of Losses set forth in such Officer's Certificate; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Dateextent an Officer's Certificate alleges only the basis for anticipated Losses, no amount shall be distributed until such Losses are actually paid, incurred or sustained. If the Indemnitee shall notify the Company promptly Stockholder Representative does not object in writing within the later of (X30-day period set forth in Section 8.3(c) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge delivery by Parent of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known Officer's Certificate to the Indemnitee giving rise Stockholder Representative, such failure to such indemnification right and so object shall constitute an irrevocable acknowledgment by the amount or an estimate Stockholder Representative on behalf of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), Stockholders that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee Indemnified Party is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations full amount of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel claim for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise Losses set forth in such Proceeding or claim, issue or matter thereinOfficer's Certificate; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of extent an Officer's Certificate alleges only the Company orbasis for anticipated Losses, with respect no amount shall be distributed until such Losses are actually paid, incurred or substantiated (notwithstanding the Stockholder Representative's failure to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulobject in writing).
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(ai) Whenever any Proceedings claim shall arise, to obtain arise for indemnification under this AgreementSection 12.3, the Indemnitee a Representative shall notify the Company promptly describe such claim in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge a Notice of Claim to NCI and, when known, specify the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right claim and the amount or an estimate of the amount of liability such claim. Each Notice of Claim shall (including estimated expensesA) arising therefrombe signed by a Representative, (B) contain a description of the claim, (C) specify the amount of such claim, and (D) state that, in the opinion of the signer thereof, such Notice of Claim is valid under the terms of Section 12 hereof and is being given by a Representative in good faith.
(bii) Any A Representative shall give NCI prompt notice of any claim for indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Noticehereunder resulting from, or (Y) Independent Counsel (as hereinafter defined)in connection with, agreed to by the Companyany claim or Third-Party Claim and, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to any Third-Party Claim, NCI shall undertake the Indemnitee's lack of entitlement defense thereof by representatives reasonably satisfactory to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making NCI and such determination Representative. NCI shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter not have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnificationsettle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding in its sole discretion without the prior written consent of a Representative. Anyone seeking to overcome this presumption A Representative shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall participate in any event be presumed that the Indemnitee has such defense of a Third-Party Claim with advisory counsel of its own choosing at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid its own expense, delay, distraction, disruption and uncertainty. In the event that NCI, within a reasonable time after notice of any Proceeding Third-Party Claim, fails to defend, a Representative shall have the right to undertake the defense, compromise or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claimThird-Party Claim on behalf of, issue or matter therein with or and for the account of, NCI, at the expense and risk of NCI to the extent of its liability set forth in Section 12. NCI, without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalentRepresentative's written consent, shall not (except settle or compromise any such Third-Party Claim or consent to entry of any judgment that does not include, as otherwise expressly provided an unconditional term thereof, the giving by the claimant or the plaintiff to the Stockholders, or affiliate or affiliates, as the case may be, an unconditional release from all liability in respect of such Third- Party Claim. Notwithstanding any provision herein to the contrary, failure of a Representative to give any notice of any Third-Party Claim required by this Agreement) of itself adversely affect the right Section 12 shall not constitute a waiver of the Indemnitee Stockholders' right to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect defense to any criminal Proceedingclaim by the Stockholders hereunder, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulunless NCI is materially prejudiced thereby.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification The period during which an Indemnity Claim for a particular Indemnifiable Matter under this AgreementArticle X may be made (the “Claims Period”) shall be the Survival Period applicable to such Indemnifiable Matter. Any Indemnity Claims made with respect to an Indemnifiable Matter after the applicable Claims Period for such Indemnifiable Matter shall be barred, and the Indemnitors and the Joining Parties shall have no liability with respect thereto. AmericasActive:12666190.14
(b) If a Parent Indemnified Party wishes to bring an Indemnity Claim hereunder, the Indemnitee Parent Indemnified Party shall give prompt written notice (a “Claim Notice”) thereof to the Securityholders’ Representative; provided, that the failure to so notify the Company Securityholders’ Representative promptly shall not relieve the Indemnitors or the Joining Parties of their obligations under this Article X with respect to the Indemnity Claim asserted in the Claim Notice, except to the extent prejudiced by such failure or delay. The Claim Notice shall specify the Indemnifiable Matter that is the basis for the Indemnity Claim (including, if applicable, the specific representation, warranty, covenant or certification claimed to be breached), the Losses incurred by, or reasonably anticipated to be incurred by, the Parent Indemnified Party on account thereof and the facts and circumstances giving rise to such Indemnity Claim, set forth in reasonable detail. The Claim Notice may be updated and amended from time to time prior to the resolution of the Indemnity Claim set forth therein by the Parent Indemnified Party by delivering an updated or amended Claim Notice to the Securityholders’ Representative, so long as the delivery of the original Claim Notice is made within the applicable Claims Period and such update or amendment relates to the underlying facts and circumstances specifically set forth in such original Claim Notice. If an objection has been timely made by the Securityholders’ Representative under Section 10.3(c) with respect to a Claim Notice which Claim Notice is subsequently updated or amended, the Securityholders’ Representative will be deemed to have objected to such updated or amended Claim Notice unless otherwise agreed by the Securityholders’ Representative in writing. If the Securityholders’ Representative did not so object to the original Claim Notice, the provisions of Section 10.3(c) (including the Securityholders’ Representative right to object to the updated or amended Claim Notice) shall apply to the updated or amended Claim Notice, mutatis mutandis. The Parent Indemnified Party shall include with each Claim Notice the documentation and other information within its possession and control supporting the matters asserted in the Claim Notice or any amendment or update thereto, and such additional materials in its possession and control that form the basis for such claims as reasonably requested by the Securityholders’ Representative, it being understood and agreed that the Parent Indemnified Party shall have no obligation to provide any materials subject to attorney-client privilege or that constitute attorney work product absent a customary joint defense agreement or similar arrangement that is reasonably acceptable to the Parent Indemnified Party and the Securityholders’ Representative.
(c) Unless the Securityholders’ Representative objects to the Indemnity Claim in a writing and in any event delivered to the Parent Indemnified Party or Parent within thirty (30) days after the Indemnitee has actual knowledge receipt of the facts constituting a Claim Notice (which written notice will describe in reasonable detail the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior objecting to the Effective DateIndemnity Claim, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of including the amount of liability the Losses disputed or reasonably anticipated to be disputed), the Parent Indemnified Party shall, subject to the other terms of this Article X, be entitled to receive in respect of the Indemnity Claim set forth in such Claim Notice the amount of Losses that are specified in such Claim Notice (including estimated expenses) arising therefrom.
(b) or if only a portion of such Losses are disputed, such portion of Losses that are undisputed). Any indemnification under this Agreement disputed Indemnity Claims shall be made no later than thirty resolved either (30i) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met agreement signed by the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed Parent Indemnified Party and the Securityholders’ Representative or (ii) by a majority vote the final, non-appealable decision of a quorum consisting of directors, notwithstanding that any court resolving such directors are parties to the Proceeding described disputed Indemnity Claim in the Indemnification Noticeaccordance with Section 13.7.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
Claims for Indemnification. It is Promptly after receipt by any indemnified person of a notice of a claim or the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event beginning of any Proceeding or any claim, issue or matter therein with regard action in respect of which indemnity is to which Indemnity will or could be sought under against an indemnifying person pursuant to this under this AgreementSection 8, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee such indemnified person shall notify the Company promptly indemnifying person in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of such claim or of the facts constituting commencement of such action, but the basis omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such Proceeding indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any claimaffiliate or associate thereof, issue or matter thereinthe indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement no indemnifying person shall be made responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no later than thirty (30) days after receipt by the Company event shall any indemnifying person be liable in respect of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described any amounts paid in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement settlement of any action pursuant to this Agreement that indemnification is proper under unless the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption indemnifying person shall have approved the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement terms of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed settlement; provided that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the burden subject matter of proof and the burden of persuasion by clear and convincing evidencesuch proceeding.
(ea) The termination If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified person under subsection 8.1 or 8.2 above in respect of any Proceeding losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying person shall contribute to the amount paid or payable by such indemnified person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Issuer on the one hand and the Purchaser(s) on the other in connection with the statements or omissions or other matters which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, in the case of an untrue statement, whether the untrue statement relates to information supplied by the Issuer on the one hand or the Purchaser(s) on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement. The Issuer and the Purchasers agree that it would not be just and equitable if contribution pursuant to this subsection 8.3(a) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection 8.3(a). The amount paid or payable by an indemnified person as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection 8.3(a) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection 8.3(a), a Purchaser shall not be required to contribute any amount in excess of the amount by which the net amount received by such Purchaser from the sale of the Purchased Securities to which such loss relates exceeds the amount of any claim, issue or matter therein, damages which such Purchaser has otherwise been required to pay by judgment, order, settlement or conviction, or upon a plea reason of nolo contendere or such untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Purchaser’s obligations in this subsection to contribute shall be in proportion to its equivalent, sale of Purchased Securities to which such loss relates and shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, joint with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulother Selling Stockholders.
(hb) The Company will parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including, without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. The parties are advised that federal or state public policy as interpreted by the courts in certain jurisdictions may be entitled contrary to participate in certain of the Proceeding at its own expenseprovisions of this Section 8, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 8 and further agree not to attempt to assert any such defense.
Appears in 1 contract
Claims for Indemnification. It is the intent If Parent delivers to Seller a notice of this Agreement a claim for indemnification pursuant to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy Article XII or Article XIII of the State Merger Agreement (each, a “Claim” and each such notice, a “Claim Notice”), Parent shall also send a copy of Floridasuch notice to the Escrow Agent, which notice shall include a certification by Parent that a copy of such notice has been delivered to Seller. AccordinglyWithout limiting the Merger Agreement, each Claim Notice shall set forth the parties agree that aggregate amount of the following procedures and presumptions shall apply Damages (as defined in the event Merger Agreement) claimed by Parent or an estimate thereof to the extent then known (the “Indemnity Claim Amount”). If Seller desires to dispute such Claim, Seller shall deliver to Parent and the Escrow Agent (which notice to the Escrow Agent shall include a certification by Seller that a copy of any Proceeding or any claim, issue or matter therein with regard such notice has been delivered to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
Parent) written notice disputing such Claim (aeach a “Dispute Notice”) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) calendar days following receipt by Seller of the applicable Claim Notice. If Seller timely delivers a Dispute Notice to Parent and the Escrow Agent regarding an applicable Claim, the Escrow Agent shall make payment with respect to such Claim only in accordance with Joint Instructions delivered pursuant to Section 3.1 or a Final Order and Legal Opinion delivered pursuant to Section 3.2. Escrow Agent shall conclusively presume that any Claim Notice or Dispute Notice delivered to it was simultaneously delivered to Seller or Parent, as applicable. If no Dispute Notice is received by the Escrow Agent within such 30-day period, then the Indemnity Claim Amount as set forth in the applicable Claim Notice shall be deemed established for purposes of this Agreement and the Merger Agreement and, on the first (1st) Business Day after the Indemnitee has actual knowledge expiration of such 30-day period, the facts constituting Escrow Agent shall pay to Parent (or Parent’s designee) such Indemnity Claim Amount from (and only to the basis for such Proceeding or any claim, issue or matter thereinextent of) the Escrowed Funds; provided, howeverthat before making such payment to Parent, Escrow Agent shall have received from Parent written notice that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) calendar day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), has elapsed and that the Indemnitee Parent has not met received a Dispute Notice from Seller. The Escrow Agent shall not inquire into or consider whether a Claim or Claim Notice complies with the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations requirements of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conductMerger Agreement.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure If a claim for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, Article IV is not paid in full by the Indemnitee shall notify the Company promptly in writing and in any event corporation within thirty (30) days after a written claim pursuant to Section 4.2 has been received by the Indemnitee has actual knowledge corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the facts constituting claim and, if successful in whole or in part, the basis for claimant shall be entitled to be paid also the expense of prosecuting such Proceeding or any claim, issue or matter therein; provided, however, that with respect . It shall be a defense to any Proceeding such action (or other than an action brought to enforce a claim for expenses incurred in defending any claimproceeding in advance of its final disposition where the required undertaking, issue or matter therein)if any is required, that was initiated prior has been tendered to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (Xcorporation) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee claimant has not met the relevant standards standard of conduct that makes it permissible under the General Corporation Law of the State of Delaware for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directorsthe corporation to indemnify the claimant for the amount claimed, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have but the burden of persuasion by clear and convincing evidence that proving such defense shall be on the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencecorporation. Neither the failure of the Company corporation (including by its directors board of directors, Independent Counsel or Independent Counselstockholders) to have made a determination prior to the commencement of any such action pursuant to this Agreement that indemnification of the claimant is proper under in the circumstances because the Indemnitee he or she has met the applicable standard of conductconduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Company corporation (including by its directors board of directors, Independent Counsel or Independent Counselstockholders) that the Indemnitee claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee claimant has not met the applicable standard of conduct.
(d) To . If a determination shall have been made pursuant to this Section 4.3 that the maximum extent permitted by applicable lawclaimant is entitled to indemnification, the Indemnitee corporation shall be deemed bound by such determination in any judicial proceeding commenced pursuant to have acted Section 4.3. The corporation shall be precluded from asserting in good faith if any judicial proceeding commenced pursuant to Section 4.3 that the Indemnitee's action was based on procedures and presumptions of this Article IV are not valid, binding and enforceable and shall stipulate in such proceeding that the records or books of account of corporation is bound by all the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceArticle IV.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (Intersil Corp/De)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(eg) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.its
Appears in 1 contract
Sources: Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. It If any Buyer Indemnitee determines that it is entitled to indemnification pursuant to this Article X in respect of any Losses or receives any written notice from a third-party in respect of a claim that is indemnifiable hereunder other than with respect to claims for indemnification for Tax claims (such notice, a “Third Party Notice”), the intent Buyer shall promptly, and, in the case of this Agreement a Third Party Notice, in no event later than ten (10) calendar days following its receipt of such Third Party Notice, give the Seller Shareholder notice of such claim (a “Notice of Claim”). Any such Notice of Claim shall set forth in reasonable detail the basis for such claim for indemnification and, to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable lawextent specified or otherwise known, including without limitation the Florida Statues and public policy amount of the State of Floridaclaim. AccordinglyNotwithstanding the foregoing, the parties agree failure of the Buyer to provide notice to the Seller Shareholder in accordance with this Section 10.2 shall not release the Seller from its obligations under this Article X, except to the extent that the following procedures and presumptions shall apply in Seller is materially prejudiced by such failure. With respect to any indemnification sought by a Buyer Indemnitee that does not involve a Third Party Claim, if the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
Seller and/or Seller Shareholder (aas applicable) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the do not notify such Buyer Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge from its receipt of the facts constituting Notice of Claim that the basis for Seller and/or Seller Shareholder (as applicable) disputes such Proceeding or any claim, issue or matter therein; provided, however, that the Seller and/or Seller Shareholder (as applicable) shall be deemed to have accepted and agreed with respect to such claim. If the Seller and/or the Seller Shareholder disputes a claim for indemnification (including any Proceeding (or any claim, issue or matter thereinThird Party Claim), that was initiated prior the Seller Shareholder shall promptly give notice to the Effective Date, the such Buyer Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreementsuch dispute, and such Buyer Indemnitee and the Seller and/or the Seller Shareholder (Yas applicable) shall proceed in good faith to negotiate a resolution to such dispute. If such Buyer Indemnitee and the Seller and/or the Seller Shareholder (as applicable) cannot resolve such dispute in thirty (30) days after the Indemnitee has actual knowledge delivery of the facts constituting notice of dispute by the basis for Seller Shareholder, such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement dispute shall be made no later than thirty (30) days after receipt resolved by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made arbitration pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct13.5.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Sale and Purchase Agreement (GreenTree Hospitality Group Ltd.)
Claims for Indemnification. It Except for Third Party Claims described in Section 13.3(b) below, if an event giving rise to indemnification hereunder shall have occurred or is threatened, then the intent party seeking indemnification (“Indemnified Party”) promptly shall deliver to the party from whom indemnity is sought (“Indemnifying Party”) written notice thereof, stating that such event has occurred or is threatened, describing such event in reasonable detail and specifying or reasonably estimating the amount of the prospective Loss (which estimate or specification shall be non-binding) and the method of computation thereof (a “Claim”), all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or has arisen (the “Notice of Claim”). For purposes hereof, any Claim for indemnification shall be deemed to secure for the Indemnitee rights of indemnity that are have been made as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State date on which the Notice of Florida. Accordingly, Claim is delivered in accordance with the parties agree that terms of this Section 13.3.
(i) In the following procedures and presumptions event the Indemnifying Party shall apply in good faith dispute the validity of all or any amount of a Claim for indemnification as set forth in the event Notice of any Proceeding or any claimClaim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreementthen such Indemnifying Party shall, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after delivery of the effectiveness Notice of this AgreementClaim, execute and deliver to the Indemnified Party a notice setting forth with reasonable particularity the grounds, amount of, and basis upon which the Claim is disputed (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"“Dispute Statement”). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(bii) Any indemnification under this Agreement In the event the Indemnifying Party shall be made no later than thirty within ten (3010) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote Notice of a quorum consisting of directors who were not parties Claim deliver to the Proceeding Indemnified Party a Dispute Statement, then the portion of the claim described in the Indemnification Notice, Notice of Claim disputed by such Indemnifying Party (the “Disputed Liability”) shall not be due and payable from such Indemnifying Party except in accordance with (A) a final decision of an arbitrator pursuant to an arbitration instituted under Section 14.1 of this Agreement or (YB) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion agreement between the Indemnified Party and such Indemnifying Party stipulating the amount of the Admitted Liability.
(which counsel iii) In the event any Indemnifying Party shall be appointed if not within ten (10) days after receipt of the Notice of Claim deliver to such Indemnifying Party a quorum is not obtainable)Dispute Statement identifying a Disputed Liability, that then the Indemnitee has not met amount of the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding claim described in the Indemnification Notice.
(c) If and when Notice of Claim, or if a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder Dispute Statement is made pursuant to Section 5(b)delivered, the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has portion thereof not met the applicable standard of conduct to be entitled to indemnification under this Agreementdisputed as a Disputed Liability, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if be admitted (the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d“Admitted Liability”) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claimIndemnifying Party and shall, issue or matter therein with or without payment upon the incurring of money or other consideration) it shall an actual Loss arising therefrom, immediately be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof due and the burden of persuasion by clear and convincing evidencepayable.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is In order to seek indemnification under SECTION 7.2, Parent shall deliver an Officer's Certificate to the intent of this Agreement to secure for Stockholder Representative and the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation Escrow Agent at any time on or before the Florida Statues Survival Date. On the thirtieth (30th) day after the Escrow Agent's and public policy the Stockholder's receipt of the State of Florida. Accordinglyofficer's Certificate, unless the Stockholder Representative shall have delivered an Objection Notice pursuant to SECTION 7.4(b) hereof, the parties agree that the following procedures and presumptions Escrow Agent shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior deliver to the Effective Date, Indemnified Party from the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known Escrow Fund an amount equal to the Indemnitee giving rise Loss set forth in such Officer's Certificate. Any payment from the Escrow Fund to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement Indemnified Parties shall be made no later than thirty in Parent Common Stock (30) days after receipt by the Company valuing each share of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties Parent Common Stock equal to the Proceeding described in the Indemnification Notice, or (YSigning Price) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if been made pro rata amongst the Indemnitee's action was Stockholders based on the records aggregate amounts deposited into the Escrow Fund on each such Stockholder's behalf. For the purposes hereof, "OFFICER'S CERTIFICATE" shall mean a certificate signed by any Vice President or books above of account Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the basis and factual background to such indemnification claim, the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, or properly accrued, or the basis for such anticipated liability, and the nature of the Enterprise (as hereinafter defined)misrepresentation, including financial statements, breach of warranty or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein covenant contained herein to which the Indemnitee such item is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerelated.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is Any party hereto (individually or with others, collectively, the intent "Indemnitee") shall give the Shareholders, or ▇▇▇▇▇▇▇ and I-Bus, as the case may be (the "Indemnitor"), written notice (the "Claim Notice") of this Agreement any claim (including the receipt of any demand) or the commencement of any action with respect to secure for which indemnity may be sought by the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law(individually, including without limitation the Florida Statues a "Claim" and public policy of the State of Florida. Accordinglycollectively, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein"Claims"); provided, however, that if the Indemnitee fails to give such Claim Notice in a materially correct form prior to the expiration of the General Liability Period (except with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior breaches of the representations and warranties specified in the proviso to Section 6.1 and the Effective Date, the Indemnitee shall notify the Company promptly covenants and agreements contained in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after which shall not be so limited), all rights of the Indemnitee has actual knowledge to assert any such Claims for a ▇▇▇▇▇▇▇/I-Bus Agreement Breach, a Shareholders Purchase Agreement Breach shall terminate and be forever waived. The Claim Notice shall include a description of the facts constituting grounds upon which the basis Claim for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice")indemnification is being made. The Indemnification Notice shall specify all facts known to right of the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made for a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee Claim shall be deemed to have acted in good faith if be accepted by the IndemniteeIndemnitor unless, within 45 days after the Indemnitor's action was based on the records or books of account receipt of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In additionClaim Notice, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise Indemnitor shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by notify the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as writing that it objects to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulClaim.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It In the event it shall appear that an event giving rise to indemnification hereunder shall have occurred or is threatened, Indemnitee promptly shall give Indemnitor written notice thereof, stating that such event has occurred or is threatened, describing such event in reasonable detail and specifying or reasonably estimating the intent amount of the Loss and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (the “Notice of Claim”). For purposes hereof, any claim for indemnification shall be deemed to secure for the Indemnitee rights of indemnity that are have been made as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State date on which the Notice of Florida. Accordingly, Claim is delivered.
(i) In the parties agree that event Indemnitor shall in good faith dispute the following procedures and presumptions shall apply validity of all or any amount of a claim for indemnification as set forth in the event Notice of any Proceeding or any claimClaim, issue or matter therein with regard to which Indemnity will or could be sought under this under this AgreementIndemnitor shall, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) calendar days after the Indemnitee has actual knowledge of delivery of the facts constituting Notice of Claim, execute and deliver to Indemnitee a notice setting forth with reasonable particularity the grounds and basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to upon which the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the claim and/or amount of liability Loss is disputed (including estimated expenses) arising therefromthe “Dispute Statement”).
(bii) Any indemnification under this Agreement In the event Indemnitor shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made not within such thirty (30) calendar day period by (X) deliver to Indemnitee a Dispute Statement, then the Board by a majority vote amount of a quorum consisting of directors who were not parties to the Proceeding claim described in the Indemnification Notice, Notice of Claim or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is portion thereof not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee disputed shall be deemed to have acted in good faith if be admitted (the Indemnitee's action was based on “Admitted Liability”) and shall, upon the records or books incurring of account such Loss, immediately be due and payable to Indemnitee by Indemnitor.
(iii) In the event Indemnitor shall within the thirty (30) calendar day period deliver to Indemnitee a Dispute Statement, then the portion of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise claim described in the course Notice of their duties, or on Claim disputed by Indemnitor (the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise “Disputed Liability”) shall not be imputed to due and payable, except in accordance with a final and unappealable judgment or decision of a court or arbitration tribunal of competent jurisdiction, or a written agreement by Indemnitor and Indemnitee stipulating the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests amount of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceAdmitted Liability.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It In the event it shall appear that an event giving rise to indemnification hereunder shall have occurred or is threatened, Indemnitee promptly shall give Indemnitor written notice thereof, stating that such event has occurred or is threatened, describing such event in reasonable detail and specifying or reasonably estimating the intent amount of the Loss and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (the "Notice of Claim"). For purposes hereof, any claim for indemnification shall be deemed to secure for the Indemnitee rights of indemnity that are have been made as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State date on which the Notice of Florida. Accordingly, Claim is delivered.
(i) In the parties agree that event Indemnitor shall in good faith dispute the following procedures and presumptions shall apply validity of all or any amount of a claim for indemnification as set forth in the event Notice of any Proceeding or any claimClaim, issue or matter therein with regard to which Indemnity will or could be sought under this under this AgreementIndemnitor shall, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) calendar days after the Indemnitee has actual knowledge of delivery of the facts constituting Notice of Claim, execute and deliver to Indemnitee a notice setting forth with reasonable particularity the grounds and basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding upon which the claim and/or amount of Loss is disputed (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification NoticeDispute Statement"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(bii) Any indemnification under this Agreement In the event Indemnitor shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made not within such thirty (30) calendar day period by (X) deliver to Indemnitee a Dispute Statement, then the Board by a majority vote amount of a quorum consisting of directors who were not parties to the Proceeding claim described in the Indemnification Notice, Notice of Claim or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is portion thereof not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee disputed shall be deemed to have acted in good faith if be admitted (the Indemnitee's action was based on "Admitted Liability") and shall, upon the records or books incurring of account such Loss, immediately be due and payable to Indemnitee by Indemnitor.
(iii) In the event Indemnitor shall within the thirty (30) calendar day period deliver to Indemnitee a Dispute Statement, then the portion of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise claim described in the course Notice of their duties, or on Claim disputed by Indemnitor (the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise "Disputed Liability") shall not be imputed to due and payable, except in accordance with a final and unappealable judgment or decision of a court or arbitration tribunal of competent jurisdiction, or a written agreement by Indemnitor and Indemnitee stipulating the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests amount of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceAdmitted Liability.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever In the event that any Proceedings shall arise, claim or demand for which an indemnifying party (“Indemnifying Party”) would be liable to obtain indemnification under this Agreementan indemnified party (“Indemnitee”) hereunder is asserted against or sought to be collected from an Indemnitee by a third party, the Indemnitee shall promptly notify the Company promptly in writing Indemnifying Party of such claim or demand, specifying the nature of such claim or demand and in the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the “Claim Notice”); provided, that, the failure of any event within thirty Indemnitee to give such Claim Notice shall not waive any rights of an Indemnitee under this Article VIII, except to the extent that the rights of the Indemnified Party are actually materially prejudiced thereby. The Indemnifying Party shall then have ten (3010) days after Business Days from the personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnitee has actual knowledge (i) whether or not it disputes its liability to the Indemnitee hereunder with respect to such claim or demand and (ii) notwithstanding any such dispute, whether or not it desires, at its sole cost and expense, to defend the Indemnitee against such claim or demand.
(i) If the Indemnifying Party disputes its liability with respect to such claim or demand or the amount thereof (whether or not the Indemnifying Party desires to defend the Indemnitee against such claim or demand as provided in paragraphs (ii) and (iii) below), such claim or demand shall not be settled without the prior written consent of the facts constituting Indemnitee.
(ii) In the basis for event that the Indemnifying Party notifies the Indemnitee within the Notice Period that it desires to defend the Indemnitee against such Proceeding claim or any claimdemand, issue then, except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or matter thereinprosecuted by it to a final conclusion; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnitee, consent to the entry of any judgment against the Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnitee of a release, in form and substance reasonably satisfactory to the Indemnitee, from all liability in respect of such claim or litigation. If any Indemnitee desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If, in the case of any claim or demand against both the Indemnifying Party and the Indemnitee, the applicable standards of professional conduct on any significant issue between the Indemnifying Party and the Indemnitee exists with respect to any Proceeding (or any such claim, issue or matter therein), that was initiated prior to the Effective Date, then the Indemnitee shall notify have the Company promptly in writing within right to engage separate counsel the later costs and expenses of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice which shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrombe included as Indemnified Damages.
(biii) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by If the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were Indemnifying Party elects not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that defend the Indemnitee has against such claim or demand, whether by not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that giving the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreementtimely notice as provided above or otherwise, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, then the Indemnitee shall be deemed entitled to have acted in good faith if control the Indemnitee's action was based on the records defense or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, settlement of any director, officer, agent such claim or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter thereindemand; provided, however, that the Indemnitee shall not be entitled consent to indemnification under this Agreement with the entry of any judgment against the Indemnitee or settle or compromise any such claim or demand which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect to any settlement unless of such claim or litigation without the Company shall have consented to such settlement, prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(eiv) The termination of any Proceeding In the event an Indemnitee should have a claim against the Indemnifying Party hereunder that does not involve a claim or of any claimdemand being asserted against or sought to be collected from it by a third party, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create shall promptly send a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, Claim Notice with respect to any criminal Proceeding, that such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnitee had reasonable cause to believe within the Notice Period that his conduct was unlawfulit disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(hb) Any payment made to or on behalf of a party pursuant to Section 8.1 shall be treated by NFP, the Company and the Holders for federal income tax purposes as an adjustment to the Merger Consideration, and NFP, the Company and the Holders agree not to take any position inconsistent therewith, unless a final determination (which shall include the execution of a Form 870 AD or successor form) with respect to the Indemnified Parties causes any such payment not to constitute an adjustment to the Merger Consideration for federal income tax purposes.
(c) The Company will amount any Indemnifying Party is or may be entitled required to participate pay to any Indemnitee pursuant to this Article VIII shall be reduced (retroactively, if necessary) by any tax benefits actually recovered by or on behalf of such Indemnitee in reduction of the Proceeding at its own expenserelated Indemnified Damages.
Appears in 1 contract
Sources: Merger Agreement (National Financial Partners Corp)
Claims for Indemnification. It is the intent of this Agreement (i) In order to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, seek indemnification pursuant to Section 9.2(a) (including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which a Third Party Claim (as defined below)), CryoLife shall or shall cause Buyer to deliver an Officer’s Certificate to the Securityholder Representative and, if such claim involves a claim against the Indemnity will Escrow Fund, to the Escrow Agent, and such Officer’s Certificate must be delivered prior to the applicable Survival Date; CryoLife shall or could be sought under this under this Agreementshall cause Buyer to deliver an Officer’s Certificate promptly upon CryoLife concluding it intends to assert a claim for indemnification provided, however, the Company's Charter failure to promptly deliver an Officer’s Certificate shall not affect the Buyer Indemnified Persons’ right to recover Losses under Section 9.2(a), except to the extent the Seller Indemnifying Parties are prejudiced by such failure. For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any officer of CryoLife or any other obligation whatsoever Buyer: (x) stating that a Buyer Indemnified Person has paid, sustained or incurred or reasonably anticipates that it will have to pay, sustain or incur Losses, and (y) specifying in reasonable detail the individual items of Losses included in the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreementamount so stated, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting date each such item was paid, sustained or incurred, or the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreementanticipated liability, and (Y) thirty (30) days after the Indemnitee has actual knowledge nature of the facts constituting the basis for such Proceeding (1) misrepresentation, (2) breach or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote inaccuracy of a quorum consisting of directors who were not parties representation or warranty, (3) breach or failure to the Proceeding described in the Indemnification Noticeperform a covenant or other agreement, or (Y4) Independent Counsel (as hereinafter defined)other basis for indemnity to which such item is related, agreed to by the Company, but in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties each case only to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making extent such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member CryoLife as of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement date of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceOfficer’s Certificate.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of The representations, warranties, covenants and agreements in this Agreement shall survive the Closing subject to secure for the Indemnitee rights limitations set forth herein and shall not be affected by any investigation made by the parties hereto prior to the date hereof or the Closing Date. The party seeking indemnification (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party") a written notice ("Notice of indemnity that are as favorable as Claim") within sixty (60) days of the discovery of any Cost in respect of which the right to indemnification contained in this Article 8 may be permitted under applicable lawclaimed; PROVIDED, including without limitation HOWEVER, that the Florida Statues failure to give such notice within such sixty (60) day period shall not result in the waiver or loss of any right to bring such claim hereunder after such period unless, and public policy of only to the State of Florida. Accordinglyextent that, the parties agree that the following procedures and presumptions Indemnifying Party is actually prejudiced by such failure. A party shall apply in the event have no liability under this Article 8 for a breach of any Proceeding representation or any claim, issue or matter therein with regard warranty unless a Notice of Claim therefor is delivered by the Indemnified Party prior to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
date that is twelve (a12) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days months after the Indemnitee has actual knowledge Closing Date. Any Notice of Claim shall set forth the facts constituting the basis for such Proceeding or any claimrepresentations, issue or matter therein; providedwarranties, however, that covenants and agreements with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to which the Effective Dateclaim is made, the Indemnitee shall notify specific facts giving rise to an alleged basis for the Company promptly in writing within claim and the later amount of (X) ten (10) days after Cost asserted or anticipated to be asserted by reason of the effectiveness claim. For purposes of this Agreement, and (Ya) thirty (30) days after the Indemnitee has actual knowledge a Notice of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known Claim given to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee Majority Selling Group Representative shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account be given to all of the Enterprise Majority Company Shareholders, (as hereinafter defined), including financial statements, or on information supplied b) a Notice of Claim given to the Indemnitee by the officers Minority Company Shareholders shall be deemed given to all of the Enterprise in Minority Company Shareholders, (c) a Notice of Claim given to both the course of their duties, or on Minority Selling Group Representative and the advice of legal counsel for Minority Selling Group Representative shall be deemed given to all the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee members of the Enterprise Selling Group and (d) a Notice of Claim given to any of Purchaser, Vidor or Newco shall not be imputed deemed given to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether all such entities, and may be given by either Selling Group Representative or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is Whenever any Seller's Claim shall arise for indemnification of under this Article X, the intent of this Agreement to secure for VMI Shareholders and the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues INFUSYSTEM Shareholders shall notify I-FLOW and public policy I-FLOWSUB of the State of Florida. AccordinglySeller's Claim and, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claimwhen known, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding Seller's Claim. In the event of any Seller's Claim for indemnification hereunder resulting from or in connection with any claimSeller's Claim or legal proceedings by a third party, issue or matter therein; providedsuch notice shall also specify, howeverif known, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of the liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement . The VMI Shareholders and the INFUSYSTEM Shareholders shall be made no later than thirty (30) days after receipt by the Company give I-FLOW and I-FLOWSUB a reasonable opportunity to defend any such Seller's Claim at its own expense and with counsel of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties their own selection and reasonably acceptable to the Proceeding described in VMI Shareholders and the Indemnification NoticeINFUSYSTEM Shareholders, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), provided that the Indemnitee has not met VMI Shareholders and the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination INFUSYSTEM Shareholders shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter at all times also have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnificationfully participate in the defense at their own expense. Anyone seeking If I-FLOW and I-FLOWSUB shall, within a reasonable time after notice, fail to overcome this presumption defend, the VMI Shareholders and the INFUSYSTEM Shareholders shall have the burden of proof right to undertake the defense of, and to compromise or settle (exercising reasonable business judgment) the Seller's Claim on behalf, for the account, and at the risk of, I-FLOW and I-FLOWSUB. The VMI Shareholders and the burden of persuasion by clear INFUSYSTEM Shareholders shall notify I-FLOW and convincing evidence. Neither the failure I-FLOWSUB in writing of the Company (including by its directors or Independent Counsel) existence of any Seller's Claim to have made a determination prior which I-FLOW and I-FLOWSUB's indemnification would apply, but failure to so notify I-FLOW and I-FLOWSUB shall not relieve I-FLOW and I-FLOWSUB of any liability hereunder unless and to the commencement of any action pursuant extent such failure causes I-FLOW and I-FLOWSUB to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining lose the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in assert a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing reasonable defense to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the IndemniteeSeller's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefromClaim.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (I Flow Corp /Ca/)
Claims for Indemnification. It If any Investor Indemnitee or Issuer Indemnitee (an "Indemnitee") shall believe that such Indemnitee is entitled to indemnification pursuant to this Section 7 in respect of any Damages, such Indemnitee shall give the intent appropriate Indemnifying Party (which for purposes hereof, in the case of this Agreement an Investor Indemnitee, means the Issuer, and in the case of a Issuer Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to secure the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity hereunder except to the Indemnitee rights of indemnity extent that are as favorable as may be permitted under applicable law, including without limitation such failure adversely affects the Florida Statues and public policy right of the State of FloridaIndemnifying Party to assert any reasonable defense to such claim. Accordingly, the parties agree Each such claim for indemnity shall expressly state that the following procedures and presumptions Indemnifying Party shall apply have only the twenty (20) business day period referred to in the event next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
such notice either (a) Whenever any Proceedings to acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) to object to the claim by giving such Indemnitee written notice of the objection. If the Indemnifying party does not object thereto within such twenty (20) business day period, such Indemnitee shall arise, be entitled to obtain indemnification under this Agreementbe indemnified for all Damages reasonably and proximately incurred by such Indemnitee in respect of such claim. If the Indemnifying Party objects to such claim in a timely manner, the Indemnitee senior management of the Issuer and the Investor shall notify meet to attempt to resolve such dispute. If the Company promptly in writing dispute cannot be resolved by the senior management, either party may make a written demand for formal dispute resolution and in any event within specify therein the scope of the dispute. Within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Datewritten notification, the Indemnitee shall notify the Company promptly in writing parties agree to meet for one (1) day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within the later of (X) ten (10) thirty days after the effectiveness of one day mediation, either party may begin litigation proceedings. Nothing in this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee section shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerequire arbitration.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ancor Communications Inc /Mn/)
Claims for Indemnification. It is (1) During the intent period of this Agreement to secure time commencing on the Closing Date and terminating on the first anniversary thereof (the "Escrow Period"), Vertel or any of its Indemnified Persons (each, an "Indemnified Party") may make claims ----------------- from the Escrow Fund for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy any Losses in accordance with Article XIII of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Purchase Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect any claims made by any of Vertel's -------- ------- Indemnified Persons shall be made by Vertel on behalf of such Indemnified Person (at the expense of such Indemnified Person who shall advance such expenses if requested by Vertel) and any proceeds of any such claim received by Vertel hereunder shall be forwarded promptly by Vertel to any Proceeding such Indemnified Person.
(or any claim2) In the event an Indemnified Party has an undisputed claim against the Holders, issue or matter therein), that was initiated prior Vertel shall provide the Depository Agent and Trigon (all references to Trigon in this Section 2(e) shall become references to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days Indemnification Committee after the effectiveness Distribution) with written notice of this Agreement, and such claim (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to set forth the Indemnitee giving rise to such indemnification right and the amount or an estimate information required by ------ Section 13.4 of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Purchase Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement a calculation (in accordance with Section 13.3 of the Purchase Agreement) of the number of Escrow Shares to be released to Vertel in satisfaction of the claim described in such Notice and an allocation of those Escrow Shares among the Accounts. Trigon shall have 45 days from the date of such Proceeding or Notice to provide the Depository Agent with written notice of its denial of such claim (the "Dispute ------- Notice"). If no Dispute Notice is received within such 45-day period, the ------ Depository Agent shall notify Vertel and Vertel shall deliver to the Depository Agent for deposit into the Escrow Fund, replacement certificate(s) representing the appropriate number of Escrow Shares to be retained in the Escrow Fund after payment of the noticed claim ("Replacement Certificates"). Upon receipt of the Replacement ------------------------ Certificates, the Depositary Agent shall release all of the Escrow Shares then in its possession to Vertel, together with one Stock Assignment from each Holder.
(3) In the event the parties have come to an agreement regarding an initially disputed claim, Vertel and Trigon shall sign and furnish the Depository Agent with a claim memorandum (a "Claim Memorandum") setting forth ---------------- the number of Escrow Shares to be released to Vertel in satisfaction of the claim and an allocation of those Escrow Shares among the Accounts. As soon as practicable after delivery of the Claim Memorandum, Vertel shall deliver to the Depository Agent for deposit into the Escrow Fund, Replacement Certificates. Upon receipt of the Replacement Certificates, the Depositary Agent shall release the Escrow Shares then in its possession to Vertel, together with one Stock Assignment from each Holder.
(4) If no such agreement can be reached after good faith negotiation, either Vertel or Trigon may, by written notice to the other, demand arbitration of the matter unless the amount of the damage or loss is at issue or matter therein in pending litigation with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise a third party, in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee which event arbitration shall not be entitled commenced until such amount is ascertained or both parties agree to indemnification arbitration; and in either such event the matter shall be settled by arbitration conducted by three arbitrators. Within fifteen (15) days after such written notice is sent, Vertel (on the one hand) and Trigon (on the other hand) shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of the arbitrators as to the validity and amount of any claim shall be binding and conclusive upon the parties to this Agreement. If the arbitrators ruling is that the disputed claim is valid, Vertel and Trigon shall sign and furnish the Depository Agent with a Claim Memorandum with a copy of the arbitrators ruling attached setting forth the number of Escrow Shares to be released to Vertel in satisfaction of the claim and an allocation of those Escrow Shares among the Accounts. As soon as practicable after delivery of the Claim Memorandum, Vertel shall deliver to the Depository Agent for deposit into the Escrow Fund, Replacement Certificates. Upon receipt of the Replacement Certificates, the Depositary Agent shall release the Escrow Shares then in its possession to Vertel, together with one Stock Assignment from each Holder.
(5) Whenever Replacement Certificates are required by the terms of this Section 2(e) to be delivered by Vertel to the Depository Agent, such Replacement Certificates shall be issued in the name of each Holder, in a denomination in proportion to such Holder's Percentage Interest, rounded to whole numbers in accordance with written instructions from Trigon such that the total number of shares represented by the Replacement Certificates equals the number of Escrow Shares remaining in the Escrow Fund after satisfaction of a claim by an Indemnified Party under this Agreement Section 2(e). If Trigon fails to provide written instructions with respect to any settlement unless the Company shall have consented foregoing rounding calculations within 14 days after delivery to such settlementit of a written request from Vertel therefor, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have then Vertel may calculate the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right denominations of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed Replacement Certificates (rounding down to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulnearest whole number).
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Liquidation (Vertel Corp)
Claims for Indemnification. It is All claims for indemnification by the intent Indemnitees will be asserted and resolved in accordance with the terms of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:ARTICLE VIII (Indemnification).
(a) Whenever any Proceedings shall ariseTo seek indemnification pursuant to this ARTICLE VIII (Indemnification), to obtain indemnification under this Agreementan Indemnitee will promptly notify the applicable indemnitor (as applicable, the Indemnitee shall notify the Company promptly “Indemnitor”) in writing of the claim, describing the claim in reasonable detail and the amount, or a reasonable estimation of such amount made in any event within thirty (30) days after good faith based on the facts known at the time and not on a purely speculative basis, of Losses suffered or to be suffered by the Indemnitee has actual knowledge of pursuant to the facts constituting claim (the basis for such Proceeding or any claim, issue or matter therein“Claims Notice”); provided, however, that with respect a failure of any Indemnitee to any Proceeding (or any promptly notify the Indemnitor of a claim will not relieve the Indemnitor from liability for such claim, issue or matter therein), that was initiated prior except and only to the Effective Date, extent that the Indemnitor actually and materially was prejudiced by such delay. If the Indemnitor does not notify the Indemnitee shall notify the Company promptly in writing within the later of twenty (X) ten (1020) days after from its receipt of such Claims Notice that the effectiveness of this AgreementIndemnitor disputes such claim, the Indemnitor will be deemed to have accepted and (Y) thirty (30) days after agreed to indemnify the Indemnitee from and against the entirety of any Losses described in such Claims Notice. If the Indemnitor has actual knowledge of delivered such an indemnity dispute notice to the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such noticeIndemnitee, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to Indemnitor and the Indemnitee giving rise will proceed in good faith to negotiate a resolution to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefromdispute.
(b) Any With respect to any claim for indemnification under pursuant to this Agreement shall be made no later than thirty ARTICLE VIII (30Indemnification) days after receipt by the Company that does not involve a Third-Party Claim, each of the Indemnification Notice, unless a determination is made within Indemnitee and Indemnitor will reasonably cooperate and assist the other in determining the validity of such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described claim and in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if otherwise resolving such a quorum is not obtainable)claim; provided, that no Person will be required by this clause to disclose any confidential information or take any action that would reasonably be expected, at the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote advice of a quorum consisting of directorscounsel, notwithstanding that to waive or limit any such directors are parties to the Proceeding described in the Indemnification Noticeattorney-client or other similar privilege.
(c) If and when a determination with With respect to the Indemnitee's lack of entitlement to any claim for indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement ARTICLE VIII (Indemnification) that indemnification is proper under does involve a Third-Party Claim, the circumstances because Indemnitor will have twenty (20) days from the date on which the Indemnitor received the Claims Notice to notify the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) in writing that the Indemnitee has not met such applicable standard of conduct, shall be a defense Indemnitor desires to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable lawassume and to assume, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records negotiation, defense or books of account prosecution of the Enterprise (Third-Party Claim, with counsel of its choice. Should the Indemnitor so assume the negotiation, defense or prosecution of a Third-Party Claim, then so long as hereinafter defined)it diligently conducts such negotiation, including financial statements, defense or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In additionprosecution, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall Indemnitor will not be imputed liable to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or legal expenses (including attorneys' fees and disbursements) subsequently incurred by the Indemnitee in so cooperating connection with the personnegotiation, persons defense or entity making prosecution thereof, unless the Indemnitee reasonably determines, upon the advice of external counsel for the Indemnitee, that the Third- Party Claim involves potential conflicts of interest or substantially different defenses for the Indemnitee and the Indemnitor, in which case the Indemnitor will be liable to the Indemnitee for the reasonable expenses of one counsel for the Indemnitee. Notwithstanding the foregoing, the Indemnitor will not be entitled assume the defense of any Third-Party Claim (i) to the extent such determination shall be borne by claim alleges a violation of criminal law or seeks non-monetary relief; (ii) if the Company defense thereof is not assumed within twenty (irrespective 20) days after the date on which the Indemnitor received the Claims Notice or (iii) if the Indemnitor does not conduct the defense of the determination as to Third-Party Claim with reasonable diligence. Should the Indemnitee's entitlement to indemnification) and Indemnitor so assume the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that negotiation, defense or prosecution of a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expenseThird-Party Claim, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (includingi) will have the right to participate in, without limitationbut not control, settlement the negotiation, defense or prosecution thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnitor and (ii) will reasonably cooperate in the negotiation, defense or prosecution thereof, with such cooperation to include the retention and (upon the Indemnitor’s request and at the Indemnitor’s expense) the provision to the Indemnitor of records and information that are reasonably relevant to such Proceeding Third-Party Claim and the use of reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Should the Indemnitor not so assume the negotiation, defense or claimprosecution of a Third-Party Claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not will be entitled to indemnification under this Agreement assume such negotiation, defense or prosecution at the Indemnitor’s cost and expense. Regardless of which Party controls the negotiation, defense or prosecution of a Third-Party Claim, such controlling Party will not admit any Liability with respect to any settlement unless to, or settle, compromise or discharge, such Third-Party Claim without the Company shall have consented to such settlement, other Party’s prior written consent (which consent shall will not be unreasonably withheld. Anyone seeking to overcome this presumption shall have , conditioned or delayed); provided, that if the burden Indemnitor assumes the negotiation, defense or prosecution of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any a Third-Party claim, issue the Indemnitor may pay, settle or matter thereincompromise such Third-Party Claim without the written consent of the Indemnitee, by judgment, orderso long as such payment, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not compromise (except as otherwise expressly provided in this Agreementx) of itself adversely affect the right includes an unconditional release of the Indemnitee to indemnification or create a presumption that from all Losses in respect of such Third-Party Claim, (y) does not subject the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingliability or injunctive relief or other equitable remedy and (z) does not include a statement or admission of fault, that culpability or failure to act by or on behalf of the Indemnitee had reasonable cause to believe that his conduct was unlawfulIndemnitee.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rexford Industrial Realty, Inc.)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable lawAny party hereto (individually -------------------------- or with others, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such noticecollectively, the "Indemnification Indemnitee") shall give the Principal Stockholder or Tetra Tech, as the case may be (the "Indemnitor"), written notice (the "Claim Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate ) of the amount of liability any claim (including estimated expensesthe receipt of any demand) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant with respect to this which indemnity may be sought by the Indemnitee (individually, a "Claim" and collectively, "Claims"); provided, -------- however, that if the Indemnitee fails to give such Claim Notice prior to the ------- expiration of the General Liability Period or the Tax Liability Period, as applicable, all rights of the Indemnitee to assert any such Claims for a Tetra Tech Purchase Agreement that Breach or Stockholder Purchase Agreement Breach, as the case may be, shall terminate and be forever waived. The Claim Notice shall state (i) the aggregate amount of Tetra Tech's Recoverable Losses or the Stockholders' Recoverable Losses (in either case, "Recoverable Losses") as to which indemnification is proper under being sought (which amount may be estimated and updated from time to time); (ii) the circumstances because components of the amount of Recoverable Losses for which indemnification is being sought (which components may be estimated and updated from time to time); and (iii) the specific grounds upon which the Claim for indemnification is being made. The right of the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be to indemnification for a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee Claim shall be deemed to have acted in good faith if be accepted by the IndemniteeIndemnitor unless, within 30 days after the Indemnitor's action was based on the records or books of account receipt of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In additionClaim Notice, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise Indemnitor shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by notify the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as writing that it objects to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulClaim.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tetra Tech Inc)
Claims for Indemnification. It is the intent of With respect to any claims or demands by -------------------------- third parties, other than claims or demands covered by Section 7.3, whenever Expedia shall have received a written notice that such a claim or demand has been asserted or threatened, or whenever Expedia shall seek indemnification pursuant to this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable lawArticle VII, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee Expedia shall notify the Company promptly "Holders' Representative" (as designated in writing the Escrow Agreement) of such claim or demand and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for within Expedia's knowledge that relate thereto within a reasonable time after receiving such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such written notice, the "Indemnification Notice"). The Indemnification Notice Holders' Representative shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter then have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnificationcontest, negotiate or settle any such claim or demand through counsel of his own selection, satisfactory to Expedia and solely at the Holders' own cost, risk, and expense. Anyone seeking to overcome this presumption shall have Notwithstanding the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable lawpreceding sentence, the Indemnitee Holders shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined)not settle, including financial statementscompromise, or on information supplied offer to settle or compromise any such claim or demand without the Indemnitee by the officers prior written consent of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlementExpedia, which consent shall not be unreasonably withheld. Anyone seeking By way of illustration and not limitation it is understood that Expedia may object to overcome a settlement or compromise which includes any provision which in its reasonable judgment may have an adverse impact on or establish an adverse precedent for the Business Condition of Expedia or any of its Subsidiaries. Expedia shall not have the right to object to a settlement which consists solely of the payment of a monetary damage amount and which is subject to full indemnification under this presumption Agreement. If the Holders' Representative fails to give written notice to Expedia of his intention to contest or settle any such claim or demand within twenty (20) calendar days after Expedia has notified the Holders' Representative that any such claim or demand has been made in writing and received by Expedia, or if any such notice is given but any such claim or demand is not promptly contested by the Holders' Representative, Expedia shall have the burden of proof right to satisfy and discharge the burden of persuasion same by clear and convincing evidence.
(e) The termination of any Proceeding or of any claimpayment, issue or matter therein, by judgment, order, settlement or convictioncompromise, or upon a plea otherwise, in accordance with the procedures set forth in the Escrow Agreement. Expedia may also, if it so elects and entirely within its own discretion, defend any such claim or demand if the Holders' Representative fails to give notice of nolo contendere his intention to contest or settle any such claim or demand, in which event Expedia and its equivalent, affiliates shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate indemnification to the full extent of the Total Escrow (as defined in the Proceeding at its own expenseEscrow Agreement ) for any and all costs, losses, liabilities, and expenses whatsoever, including without limitation reasonable attorneys' and other professional fees, that Expedia may sustain, suffer, incur, or become subject to as a result of Expedia's decision to defend any such claim or demand.
Appears in 1 contract
Sources: Merger Agreement (Expedia Inc)
Claims for Indemnification. It is Within the intent indemnification limitations set forth in Section 9.02 above, upon receipt by Purchaser of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event a written notice of any Proceeding or any action, suit, proceedings, claim, issue demand or matter therein with regard assessment against it which might give rise to which Indemnity will or could be sought under this under this Agreementa claim for Damages, Purchaser shall give written notice thereof to the Company's Charter or any other obligation whatsoever Seller indicating the nature of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing such claim and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter thereintherefor; provided, however, that with respect failure to any Proceeding (or any claim, issue or matter therein), that was initiated prior give such notice shall not affect the Purchaser's rights provided hereunder except to the Effective Dateextent that the Seller's rights shall have been actually and materially prejudiced as a result of such failure. Seller shall have the right, the Indemnitee shall notify the Company promptly in writing at its option, exercisable within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) 10 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel, any such matter involving the Company asserted liability of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (Purchaser as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming Seller shall have acknowledged the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including Purchaser to payment by its directors or Independent Counsel) to have made a determination prior the Seller, subject to the commencement of next sentence. If the Seller shall undertake to compromise, settle or defend any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfiedasserted liability, it shall in any event be presumed that promptly notify the Indemnitee has at all times acted in good faith and in a manner he reasonably believed Purchaser of its intention to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof do so, and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably Purchaser agrees to cooperate fully with the personSeller and its counsel in the compromise or settlement of, persons or entity making defense against, any such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter thereinasserted liability; provided, however, that the Indemnitee Seller shall not be entitled to indemnification under this Agreement with respect to settle any settlement unless such asserted liability without the Company shall have consented to such settlementwritten consent of the Purchaser, which such consent shall not be unreasonably withheld. Anyone seeking Notwithstanding an election to overcome this presumption assume the defense of such action or proceeding, the Purchaser shall have the burden of proof right to employ separate counsel and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding defense of such action or proceeding, and the reasonable fees, costs and expenses of such separate counsel shall be payable by the Seller, if (A) the Seller shall not have employed counsel reasonably satisfactory to the Purchaser to represent the Seller within 20 days after notice to the Seller of the institution of such action or proceeding or (B) the Seller shall have authorized the Purchaser to employ separate counsel at the Seller's expense and the Seller shall promptly assume and hold the Purchaser harmless from and against the full amount of any Damage resulting therefrom. Notwithstanding anything herein to the contrary, the Seller shall not be entitled to assume control of such defense but shall pay for the reasonable fees, costs and expenses of Purchaser's legal counsel if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) Purchaser has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Seller, on the one hand, and Purchaser on the other; (iii) the Seller failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or equitable relief against Purchaser; or (v) Purchaser reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the reputation or future business prospects of Purchaser. If the Purchaser shall undertake to compromise, settle or defend any asserted liability in accordance with the immediately preceding sentence, it shall promptly notify the Seller of its intention to do so, and the Seller agrees to cooperate fully with the Purchaser and its counsel in the compromise or settlement of, or defense against, any such asserted liability; provided, however, that the Purchaser shall not settle any such asserted liability without the written consent of the Seller, which such consent shall not be unreasonably withheld. In any event, the Purchaser and its counsel shall cooperate with the Seller and its counsel. The Purchaser shall have the right at its own expenseexpense to participate in the defense of such asserted liability.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(ai) Whenever any Proceedings claim shall arise, to obtain arise for indemnification under this AgreementSection 12.3, the Indemnitee a Representative shall notify the Company promptly describe such claim in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge a Notice of Claim to NCI and, when known, specify the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right claim and the amount or an estimate of the amount of liability such claim. Each Notice of Claim shall (including estimated expensesA) arising therefrombe signed by a Repre sentative, (B) contain a description of the claim, (C) specify the amount of such claim, and (D) state that, in the opinion of the signer thereof, such Notice of Claim is valid under the terms of Section 12 hereof and is being given by a Representative in good faith.
(bii) Any A Representative shall give NCI prompt notice of any claim for indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Noticehereunder resulting from, or (Y) Independent Counsel (as hereinafter defined)in connection with, agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person claim or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orThird-Party Claim and, with respect to any criminal ProceedingThird-Party Claim, that such Representative shall undertake the Indemnitee had reasonable cause defense thereof by representatives reasonably satisfactory to believe that his conduct was unlawful.
(h) The Company will be entitled NCI and such Representative. No Representative shall have the right to settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding in its sole discretion without the prior written consent of NCI. NCI shall have the right to participate in the Proceeding any such defense of a Third-Party Claim with advisory counsel of its own choosing at its own expense. In the event any Representative, within a reasonable time after notice of any Third-Party Claim, fails to defend, NCI shall have the right to undertake the defense, compromise or settlement of such Third-Party Claim on behalf of, and for the account of, NCI, at the expense and risk of NCI to the extent of its liability set forth in Section 12. NCI, without a Representative's written consent, shall not settle or compromise any such Third-Party Claim or consent to entry of any judgment that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Stockholders, or affiliate or affiliates, as the case may be, an unconditional release from all liability in respect of such Third- Party Claim. Notwithstanding any provision herein to the contrary, failure of a Representative to give any notice of any Third-Party Claim required by this Section 12 shall not constitute a waiver of the Stockholders' right to indemnification or a defense to any claim by the Stockholders hereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netsource Communications Inc)
Claims for Indemnification. It (a) At any time that a Buyer Indemnified Party or a Seller Indemnified Party (each, an “Indemnified Party”) has or claims to have incurred Losses with respect to which the Sellers or the Buyer (each, an “Indemnifying Party”) is the intent of or may be required to provide indemnification under this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly(a “Liability Claim”), the parties agree that Buyer, on behalf of such Buyer Indemnified Party, or the following procedures and presumptions Representative, on behalf of such Seller Indemnified Party, shall apply deliver one or more written notices of such Liability Claim (each, a “Claims Notice”) to the Indemnifying Party. Such Claims Notice shall be delivered to the Buyer (in the event of a claim for Losses against the Buyer), and shall be delivered to the Representative (on behalf of the Sellers, in the event of a claim for Losses against the Sellers), in each case, together with a copy of any Proceeding related correspondence or any claim, issue or matter therein with regard documentation. A Claims Notice will describe the Liability Claim to which Indemnity will it relates in reasonable detail, indicate the amount (estimated, if necessary and to the extent reasonably feasible) of such Liability Claim that has been paid, suffered, sustained or could be sought under accrued by the Indemnified Party (the “Claim Amount”) and provide account information for the Indemnified Party for purposes of receiving payments pursuant to this under this AgreementArticle 8. To the extent that the Claim Amount is not determinable as of the date of delivery of a Claims Notice, the Company's Charter or any other obligation whatsoever Buyer, on behalf of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification NoticeBuyer Indemnified Party, or (Y) Independent Counsel (as hereinafter defined)the Sellers’ Representative, agreed to by on behalf of such Seller Indemnified Party, may deliver a Claims Notice stating the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), maximum amount that the Indemnitee has not met Indemnified Party in good faith estimates or anticipates that the relevant standards for indemnification under this Agreement. Independent Counsel Indemnified Party may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination pay or suffer with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter thereinLiability Claim; provided, however, that the Indemnitee provision of an estimated or anticipated amount of Losses will not limit the Losses recoverable or recovered by an Indemnified Party. A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 8.4 will not affect the rights or obligations of any Indemnifying Party except and only to the extent that, as a result of such failure, the Indemnifying Party was directly and materially damaged as a result of such failure to give timely, complete or accurate notice. The Buyer is the sole and exclusive Person authorized to act for and bring a Liability Claim on behalf of the Buyer Indemnified Parties and the Representative is the sole and exclusive Person authorized to act for and bring a Liability Claim on behalf of any or all Sellers. In addition, the Sellers’ Representative is the sole and exclusive Person authorized to act for and defend against Liability Claims (including any such claims related to Third Party Claims, as described below) brought by a Buyer Indemnified Party against the Sellers as an Indemnifying Party and, in such instances, for the purposes of Section 8.4 and Section 8.5, the Indemnifying Party shall refer to the Representative.
(b) The Indemnifying Party may object to all or any portion of a Liability Claim set forth in a Claims Notice by delivering written notice to the Indemnified Party (an “Objection Notice”) by 5:00 p.m., Eastern Time, on the date that is the 10th Business Day after delivery of the Claims Notice (the “Objection Dispute Deadline”). Such Objection Notice shall describe the grounds for such objection in reasonable detail and set forth the portion of the Claim Amount being disputed or specify that the entire Claim Amount is being disputed. If an Objection Notice is not delivered by an Indemnifying Party to the Indemnified Party prior to the Objection Dispute Deadline, such failure to so object will be a final, binding and irrevocable acknowledgment by the Indemnifying Party that the Indemnified Party is entitled to be indemnified, defended and held harmless and reimbursed for the Losses set forth in the Claims Notice, in accordance with and subject to the provisions of, this Article 8, and the Indemnified Party shall be entitled to indemnification under this Agreement payment in the manner specified in Section 8.9. If an Objection Notice was delivered to the Indemnified Party, but such Objection Notice states that the Indemnifying Party is obligated to indemnify, or admits liability, only with respect to any settlement unless a portion of the Company Losses claimed in the Claims Notice, the Indemnified Party shall have consented be entitled to such settlementbe indemnified, defended and held harmless and reimbursed for the Losses set forth in the Claims Notice for which consent shall not be unreasonably withheld. Anyone seeking no objection was made, in accordance with and subject to overcome the provisions of, this presumption shall have the burden of proof Article 8, and the burden Indemnified Party shall be entitled to payment, in the manner specified in Section 8.9, of persuasion by clear and convincing evidencethe amount of the portion of the Losses set forth in such Claims Notice to which no objection was made.
(ec) The termination of any Proceeding or of any claimIf the Indemnifying Party delivers an Objection Notice to the Indemnified Party by the applicable Objection Dispute Deadline, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnifying Party and the Indemnitee to indemnification or create a presumption that the Indemnitee did not act Indemnified Party will attempt in good faith and in a manner which he reasonably believed to be in or not opposed to agree upon the best interests rights of the Company or, respective parties hereto with respect to any criminal Proceedingthe subject of such Claims Notice. If the Indemnifying Party and the Indemnified Party should so agree, that a memorandum or certificate setting forth such agreement will be prepared and signed by the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will Buyer and the Representative, and the Indemnified Party shall be entitled to participate payment in the Proceeding at its own expensemanner specified in Section 8.9. If no such agreement can be reached after good-faith negotiation within 30 days after the applicable Objection Dispute Deadline, either the Indemnifying Party or the Indemnified Party may initiate Proceedings to resolve such dispute in accordance with Section 9.10.
Appears in 1 contract
Claims for Indemnification. It (a) A party seeking indemnification hereunder (the "Indemnitee") shall give to the party from which indemnification is sought (the intent "Indemnitor") written notice (a "Claim Notice") of any claim which is subject to the indemnity obligations set forth in this Agreement Agreement, with sufficient promptness so as not to secure for prejudice the Indemnitee rights Indemnitor's interests in respect of such claim and any obligation of indemnity that are as favorable as may be permitted under applicable lawarising therefrom. The Claim Notice shall set forth, to the best of the Indemnitee's knowledge, all facts and other information with respect to the claim, including without limitation the Florida Statues and public policy anticipated amount of Losses or reasonable estimate thereof. The failure to give prompt notice shall not affect the rights of the State Indemnitee to indemnity hereunder, except to the extent that such failure either shall have materially prejudiced the Indemnitor in the defense of Floridasuch claim or shall have materially increased the amount of the obligation of the Indemnitor. AccordinglyThe Indemnitor receiving a Claim Notice may object to such Claim Notice by delivering written notice of such objection to the Indemnitee within fifteen (15) days after receipt of the applicable Claim Notice. If the Indemnitor does not timely object to a Claim Notice in accordance with paragraph (b) of this Section 9.4, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claimIndemnitor shall, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge receipt of the facts constituting Claim Notice, either (i) pay the basis for amount of the claim set forth in the Claim Notice, if a monetary amount is involved, in accordance with this Section 9, or (ii) if a claim of a third party is involved, have the right to assume the defense of such Proceeding claim. The Indemnitor shall have the exclusive right to conduct and control, through counsel of its own choosing, the defense of any such claim or any claim, issue or matter thereinaction arising therefrom; provided, howeverthat in conducting the defense of any such claim or action, the Indemnitor shall, and shall cause its counsel to, consult with the Indemnitee and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitee fully advised of the progress thereof. If the Indemnitor fails or refuses to assume the defense and control of the defense of any such claim or action, then the Indemnitee shall conduct and control such defense; provided, that in conducting the defense of any such claim or action, the Indemnitee shall, and shall cause its counsel to, consult with the Indemnitor and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitor fully advised of the progress thereof. So long as the Indemnitor is conducting the defense of any third party claim in accordance with this Section 9.4(a), (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the third party claim, (ii) the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to any Proceeding the third party claim without the prior written consent of the Indemnitor (or any claim, issue or matter therein), that was initiated prior such consent not to be withheld unreasonably) and (iii) the Indemnitor will not consent to the Effective Date, entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnitee shall notify (such consent not to be withheld unreasonably and such consent not to be withheld at all if the Company promptly in writing judgment or settlement contains a full release reasonably satisfactory to the Indemnitee.)
(b) An Indemnitor may object to a Claim Notice by delivering written notice to the Indemnitee (an "Objection") within the later of fifteen (X) ten (1015) days after the effectiveness receipt of the applicable Claim Notice. If an Objection has been made, the Indemnitor shall not be required to make any payments under this Section 9 until such Objection is resolved under the terms of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
paragraph (b) Any indemnification under this Agreement of Section 9.4. Once an Objection has been made, the Indemnitor and Indemnitee shall be made no later than thirty (30) days after receipt by attempt in good faith to agree upon the Company rights of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not respective parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person claim or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior claims relating to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met Claim Notice. Any such applicable standard of conduct, agreement shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and set forth in a manner he reasonably believed to be in or written memorandum signed by both parties. If the parties cannot opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing come to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.agreement within fifteen
Appears in 1 contract
Claims for Indemnification. It If a claim for Damages (a "Claim") is to be made by any Party hereto (the intent of this Agreement "Indemnitee"), such Indemnitee shall give written notice (a "Claim Notice") to secure for the other Party (the "Indemnitor") as soon as practicable after the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event becomes aware of any Proceeding fact, condition or any claim, issue or matter therein with regard event which may give rise to Damages for which Indemnity will or could indemnification may be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or any claimother legal action or otherwise, issue a "Third-Party Claim"), (i) the Indemnitor shall be entitled, if it so elects, at its own cost, risk and expense, (A) to take control of the defense and investigation of such Third-Party Claim and (B) to pursue the defense thereof by appropriate actions or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (proceedings, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnitee to handle and defend the same, and (ii) the Indemnitor shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld. In the event the Indemnitor elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 19, the Indemnitee may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim. If the Indemnitor fails to assume the defense of such Third-Party Claim in accordance with this Agreement within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnitee shall (upon delivering notice to such effect to the Indemnitor) have the right to undertake, at the Indemnitor's sole cost, risk and expense, the defense, compromise and settlement of such Proceeding or claim, issue or matter therein with or without payment Third-Party Claim on behalf of money or other consideration) it shall be presumed and for the account of the Indemnitor; provided that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee Third-Party Claim shall not be entitled to indemnification under this Agreement with respect to any settlement unless compromised or settled without the Company shall have consented to such settlementwritten consent of the Indemnitor, which consent shall not be unreasonably withheld. Anyone seeking In the event the Indemnitor assumes the defense of the claim, the Indemnitor shall keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnitee assumes the defense of the claim, the Indemnitee shall keep the Indemnitor reasonably informed of the progress of any such defense, compromise or settlement. The Indemnitor shall be liable for any settlement of any Third-Party Claim effected pursuant to overcome and in accordance with this presumption shall have the burden Section 19 and for any final judgment (subject to any right of proof appeal), and the burden Indemnitor agrees to indemnify and hold harmless Indemnitee from and against any and all Damages by reason of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, such settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfuljudgment.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It At any time that an Indemnified Person desires to claim Losses (a “Liability Claim”) that it believes are or may be indemnifiable under Section 6.3, Buyer will deliver written notice of such Liability Claim (a “Claims Notice”) prior to the expiration of the applicable survival period to the Holder Representative. A Claims Notice will describe the Liability Claim in reasonable detail, to the extent known, and indicate the amount (estimated, if necessary and to the extent feasible) of the Losses that have been or may be sustained by the Indemnified Persons. If the amount of Losses is not determinable as of the intent date of delivery of a Claims Notice, then Buyer may deliver a Claims Notice stating the maximum amount of Losses that Buyer in good faith estimates or anticipates that an Indemnified Person may sustain. No delay in or failure to give a Claims Notice by Buyer to the Holder Representative pursuant to this Section 6.5 will adversely affect any of the other rights or remedies that Buyer has under this Agreement to secure for or alter or relieve the Indemnitee rights Indemnitors of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company their obligations to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action Indemnified Persons pursuant to this Agreement Section 6.5, except and to the extent that indemnification is proper under such delay or failure has materially prejudiced the circumstances because Indemnitors. Following the Indemnitee has met delivery of a Claims Notice, the applicable standard of conduct, nor an actual determination by the Company Holder Representative and its representatives and agents will be given access (including by its directors electronic access, to the extent available), upon reasonable notice, to the books and records of the Buyer as it may reasonably require for the purposes of investigating or Independent Counsel) resolve any disputes relating to, or responding to, any matters or inquiries raised in the Claims Notice; provided that the Indemnitee has foregoing shall not met require Buyer to provide access to any information or documents if such applicable standard access in the good faith reasonable belief of conduct, shall be a defense to Buyer would violate any Law or otherwise result in the action or create a presumption that the Indemnitee has not met the applicable standard waiver of conduct.
(d) To the maximum extent permitted by applicable lawBuyer’s attorney-client privilege, the Indemnitee shall be deemed work product doctrine or similar privilege or protection applicable to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on such information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencedocuments.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Stock Purchase Agreement (Quince Therapeutics, Inc.)
Claims for Indemnification. It is the intent of this Agreement to secure for the If any Investor Indemnitee rights of indemnity or Company Indemnitee (an "INDEMNITEE") shall believe that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under pursuant to this Agreement Section 10 in respect of any Damages, such Indemnitee shall give the appropriate Indemnifying Party (which for purposes hereof, in the case of an Investor Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall thereafter have set forth in reasonable detail and to the burden extent then known the basis for such claim for indemnification. The failure of persuasion by clear and convincing evidence such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity hereunder except to the extent that such failure adversely affects the right of the 16 - 16 - Indemnifying Party to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of such notice either (a) to acquiesce in such claim by giving such Indemnitee has written notice of such acquiescence or (b) to object to the claim by giving such Indemnitee written notice of the objection. If Indemnifying Party does not met the applicable standard of conduct to object thereto within such twenty (20) business day period, such Indemnitee shall be entitled to indemnification under this Agreementbe indemnified for all Damages reasonably incurred by such Indemnitee in respect of such claim. If the Indemnifying Party objects to such claim in a timely manner, the Company's articles of incorporation, the bylaws and other obligations senior management of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion Investor shall meet to attempt to resolve such dispute. If the dispute cannot be resolved by clear the senior management either party may make a written demand for formal dispute resolution and convincing evidence. Neither specify therein the failure scope of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met dispute. Within thirty days after such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable lawwritten notification, the Indemnitee parties agree to meet for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty days after the one day mediation, either party may begin litigation proceedings. Nothing in this section shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerequire arbitration.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Securities Purchase Agreement (Silicon Graphics Inc /Ca/)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(ai) Whenever any Proceedings claim shall arise, to obtain arise for indemnification under this AgreementSection 7(b) or 7(c), the Indemnitee indemnified party shall notify describe such claim in a written notice ("Notice of Claim") to the Company promptly in writing indemnifying party (and in any event within thirty (30for purposes of this Section 7(e), a notice given pursuant to Section 7(d) days after the Indemnitee has actual knowledge shall constitute a "Notice of Claim") and, when known, specify the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right claim and the amount or an estimate of the amount of liability (including estimated expenses) arising therefromsuch claim.
(bii) Any indemnification Following the receipt by the indemnifying party of each Notice of Claim, the indemnifying party may give the indemnified party written notice ("Notice of Objection") (1) attaching a copy of such Notice of Claim, (2) stating that, in the opinion of the indemnifying party, the claim described in such Notice of Claim is invalid (either in whole or in specified part) under this Agreement the terms of Section 10 hereof, (3) giving the reasons for the alleged invalidity, and (4) stating that, based on such alleged invalidity, the indemnifying party objects to the payment of any portion of the amount claimed pursuant to such Notice of Claim. If a Notice of Objection alleges that a Notice of Claim is only partially invalid, the indemnifying party within 30 days of the receipt of such Notice of Claim, agrees to deliver to the indemnified party that portion of the amount claimed pursuant to such Notice of Claim as to which no objection is made.
(iii) First Sierra and Shareholder agree to submit to final and binding arbitration pursuant to Section 11(n) any and all disputes which have been specified in a Notice of Objection or either party has specified in a Notice of Claim to which the other party has not responded within 30 days of receipt of such Notice of Claim. If pursuant to any such arbitration proceeding it is determined that any party is obligated to make payment to the other party, then such payment shall be made to either party no later than thirty (30) 30 days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to following such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Sierra Financial Inc)
Claims for Indemnification. It (a) A Party seeking indemnification from the other hereunder (the "Indemnitee") shall give to the party from which indemnification is sought (the intent "Indemnitor") written notice (a "Claim Notice") of this Agreement any claim which is subject to secure for the Indemnitee rights indemnity obligations set forth in Section 3.2 with sufficient promptness so as not to prejudice the Indemnitor's interests in respect of such claim and any obligation of indemnity that are as favorable as may be permitted under applicable lawarising therefrom. The Claim Notice shall set forth, to the best of the Indemnitee's knowledge, all facts and other information with respect to the claim, including without limitation the Florida Statues and public policy anticipated amount of Losses or reasonable estimate thereof. The failure to give prompt notice shall not affect the rights of the State Indemnitee to indemnity hereunder, except to the extent that such failure either shall have materially prejudiced the Indemnitor in the defense of Floridasuch claim or shall have materially increased the amount of the obligation of the Indemnitor.
(b) The Indemnitor receiving a Claim Notice may object to such Claim Notice by delivering written notice of such objection to the Indemnitee within fifteen (15) days after receipt of the applicable Claim Notice. AccordinglyIf the Indemnitor does not timely object to a Claim Notice in accordance with this Section 3.3, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claimIndemnitor shall, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge receipt of the facts constituting the basis for such Proceeding or any claimClaim Notice, issue or matter therein; provided, however, that with respect to any Proceeding either (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (Xi) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of pay the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of claim set forth in the Indemnification Claim Notice, unless if a determination monetary amount is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Noticeinvolved, or (Yii) Independent Counsel (as hereinafter defined), agreed to by the Company, in if a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote claim of a quorum consisting third party is involved, have the right to assume the defense of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Noticeclaim.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination Indemnitor shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking conduct and control, through counsel of its own choosing which counsel shall be reasonably satisfactory to overcome this presumption Indemnitee, the defense of any such claim or any action arising therefrom; provided, that in conducting the defense of any such claim or action, Indemnitor shall, and shall have the burden of proof cause its counsel to, consult with Indemnitee and the burden of persuasion its counsel, if any, selected by clear it, and convincing evidence. Neither the failure shall keep such counsel, if any, and Indemnitee fully advised of the Company (including by its directors or Independent Counsel) to have made a determination prior to progress thereof. Indemnitee shall notify in writing Indemnitor promptly after the commencement assertion of any action pursuant claim, which may be the basis for indemnification hereunder and Indemnitor shall promptly arrange for counsel reasonably satisfactory to this Agreement Indemnitee to defend such action. If Indemnitor does not or is unable to provide counsel acceptable to Indemnitee within 15 days after notification of such claim, Indemnitee may within reason select counsel of its own choosing to defend such claim. Moreover, in the event Indemnitee reasonably determines that indemnification is proper under it must retain counsel to respond to a third party proceeding before such 15-day period or in the circumstances because the event Indemnitee has met hired counsel in connection with a third party proceeding before Indemnitee becomes aware of the likely existence of a claim against Indemnitor, Indemnitee may continue to employ such counsel to conduct and control the applicable standard proceeding until substitute counsel chosen by Indemnitor, if any, is reasonably able to assume control of conduct, nor an actual determination by the Company (including by matter. Nothing herein contained shall prevent Indemnitee from retaining its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conductown counsel at its own cost and expense under other circumstances.
(d) To the maximum extent permitted by applicable law, the Indemnitee No settlement of any claim for which indemnification is sought hereunder shall be deemed to have acted in good faith if made without the prior written consent of both the Indemnitor and the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencewithheld or delayed.
(e) The termination No claim for indemnification shall be made by an Indemnitee under this Section 3.3, unless and until the aggregate of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee all Losses subject to indemnification or create exceeds $5,000, and then only for Losses in excess of such amount, which amount shall be treated as a presumption that one-time deductible against the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to aggregate of all claims by the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulIndemnitee.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Asset Purchase and Patent Assignment Agreement (Youthstream Media Networks Inc)
Claims for Indemnification. It is the intent of The representations, warranties, -------------------------- covenants and agreements in this Agreement shall survive the Closing subject to secure for the Indemnitee rights of indemnity that are as favorable as may limitations set forth herein and shall not be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, affected by any investigation made by the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated hereto prior to the date hereof or the Effective Date, Time. The party seeking indemnification (the Indemnitee "Indemnified Party") shall notify give the Company promptly in writing party from whom indemnification is sought (the "Indemnifying Party") a written notice ("Notice of Claim") within the later of sixty (X) ten (1060) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement discovery of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard loss, liability, claim or expense in respect of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining which the right to indemnification under contained in this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment Article 10 may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter thereinclaimed; provided, however, that the Indemnitee failure to give such notice within such sixty (60) day period shall not result in the waiver or loss of any right to bring such claim hereunder after such period unless, and only to the extent that, the other party is actually prejudiced by such failure. In the event a claim is pending or threatened or the Indemnified Party has a reasonable belief as to the validity of the basis for such claim, the Indemnified Party may give written notice (a "Notice of Possible Claim") of such claim to the Indemnifying Party, regardless of whether a loss has arisen from such claim. All "general contingencies" under a "pooling of interests" shall be entitled settled and resolved no later than (i) the date of the first audit of financial statements containing combined operations for those items that would be expected to indemnification be encountered in the audit process, or (ii) one year after the Effective Time for other items. The limitations set forth in this Section 10.3 shall not apply to liability under this Agreement Article 10 for any intentional breach of a representation or warranty in this Agreement. Any Notice of Claim or Notice of Possible Claim shall set forth the representations, warranties, covenants and agreements with respect to any settlement unless which the Company shall have consented claim is made, the specific facts giving rise to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have an alleged basis for the burden of proof claim and the burden amount of persuasion liability asserted or anticipated to be asserted by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right reason of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulclaim.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (M2direct Inc)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable lawAny party hereto (individually or with others, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such noticecollectively, the "Indemnification Indemnitee") shall give the Shareholder Representatives or Maxw▇▇▇, ▇▇ the case may be (the "Indemnitor"), written notice (the "Claim Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate ) of the amount of liability any claim (including estimated expensesthe receipt of any demand) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred indemnity may be sought by the Indemnitee in so cooperating with (individually, a "Claim" and collectively, the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein"Claims"); provided, however, that the Indemnitee failure to give a Claim Notice shall not be entitled to indemnification under this Agreement constitute a waiver of any rights of the Indemnitee with respect to indemnification by the Indemnitor, but shall relieve the Indemnitor of its indemnity obligation to the extent that such obligation is increased as a result of the Indemnitee's failure to give timely notice; provided, further, however, that if the Indemnitee fails to give such Claim Notice prior to the expiration of the General Liability Period or the Tax Liability Period, as applicable, all rights of the Indemnitee to assert any settlement unless such Claims shall terminate and be forever waived. The Claim Notice shall state (i) the Company aggregate amount of the Maxw▇▇▇ ▇▇▇overable Losses or the Shareholders Recoverable Losses (in either case, "Recoverable Losses") as to which indemnification is being sought (which amount may be estimated and updated from time to time); (ii) the components of the amount of Recoverable Losses for which indemnification is being sought (which components may be estimated and updated from time to time); and (iii) the specific grounds upon which the Claim for indemnification is being made. The right of the Indemnitee to indemnification for a Claim shall have consented be deemed to such settlementbe accepted by the Indemnitor unless, which consent within 30 days after the Indemnitor's receipt of the Claim Notice, the Indemnitor shall not be unreasonably withheld. Anyone seeking notify the Indemnitee in writing that it objects to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulClaim.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Maxwell Technologies Inc)
Claims for Indemnification. It is In order to seek indemnification under SECTION 8.2, Parent shall deliver an Officer's Certificate to the intent Shareholder Representative. For the purposes hereof, "OFFICER'S CERTIFICATE" shall mean a certificate signed by any officer of this Agreement Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to secure for pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the Indemnitee rights individual items of indemnity that are as favorable as may be permitted under applicable law, including without limitation Losses included in the Florida Statues and public policy of the State of Florida. Accordinglyamount so stated, the parties agree that the following procedures and presumptions shall apply manner in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreementsuch amounts were calculated, the Company's Charter date each such item was paid, sustained, incurred, or any other obligation whatsoever of the Company to indemnify the Indemnittee properly accrued, or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding anticipated liability, and the nature of the misrepresentation, breach of warranty or any claim, issue or matter therein; provided, however, that with respect covenant to any Proceeding (or any claim, issue or matter thereinwhich such item is related. Upon delivery of an Officer's Certificate for Losses under SECTION 8.2(I), any Earnout Amounts that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made become payable pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise ARTICLE IX hereof shall not be imputed paid to the Indemnitee for purposes Exchange Agent, but shall be deposited with an escrow agent mutually agreeable to the parties (the costs of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed which to be in or not opposed split between the parties), to the best interests extent of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the personLosses claimed in such Officer's Certificate, persons or entity making until such determination with respect to the Indemniteeclaims contained in such Officer's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination Certificate shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in accordance with this SECTION 8.3. Upon delivery of an Officer's Certificate for Losses under SECTION 8.2(II), any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed Component Two Consideration and Earnout Amounts that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee become payable pursuant to ARTICLE IX hereof shall not be entitled paid to indemnification under this Agreement the Exchange Agent, but shall be deposited with respect an escrow agent mutually agreeable to any settlement unless the Company shall have consented parties (the costs of which to such settlementbe split between the parties), which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right extent of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act Losses claimed in good faith and such Officer's Certificate, until such claims contained in a manner which he reasonably believed to such Officer's Certificate shall be resolved in or not opposed to the best interests of the Company or, accordance with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulthis SECTION 8.3.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(eg) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings claim shall arise, to obtain arise for indemnification under this AgreementSection 11, the Indemnitee indemnified party shall notify describe such claim in a Notice of Claim to the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of other party and, when known, specify the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right claim and the amount or an estimate of the amount of liability such claim. Each Notice of Claim shall (including estimated expensesA) arising therefrombe signed by the indemnified party, (B) contain a description of the claim, (C) specify the amount of such claim, and (D) state that, in the opinion of the signer thereof, such Notice of Claim is valid under the terms of Section 11 hereof, and is being given in good faith.
(b) Any The indemnified party shall give the other party prompt notice of any claim for indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Noticehereunder resulting from, or (Y) Independent Counsel (as hereinafter defined)in connection with, agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person claim or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orThird-Party Claim and, with respect to any criminal ProceedingThird-Party Claim, that the Indemnitee had reasonable cause indemnified party shall undertake the defense thereof by representatives reasonably satisfactory to believe that his conduct was unlawful.
(hthe indemnified party and the other partie(s) hereto. The Company will be entitled indemnified party shall not have the right to settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding in its sole discretion without the prior written consent of the other party. Each party shall have the right to participate in the Proceeding any such defense of a Third-Party Claim with advisory counsel of its own choosing at its own expense. In the event the indemnified party, within a reasonable time after notice of any Third-Party Claim, fails to defend, the other party shall have the right to undertake the defense, compromise or settlement of such Third-Party Claim on behalf of, and for the account of, JNE, ANFS or AMERINET, at the expense and risk of all parties to the extent of their liability set forth in Section 11. No party shall, without the indemnified party's written consent, settle or compromise any such Third-Party Claim or consent to entry of any judgment that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the indemnified party, or affiliate or affiliates, as the case may be, an unconditional release from all liability in respect of such Third-Party Claim.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Go Online Networks Corp)
Claims for Indemnification. It is Upon receipt by the intent Stockholder Representative and the Escrow Agent at any time on or before the last day of the Escrow Period (except as provided in Section 6 of this Agreement to secure for Escrow Agreement) of a certificate signed by any officer of [-----] (an “Officer’s Certificate”):
(i) stating that an Indemnified Party has paid indemnifiable Losses that, on a aggregate basis with all prior Losses, exceed $[Amount], and SAMPLE
(ii) specifying in reasonable detail the Indemnitee rights claiming Indemnified Party, each individual item of indemnity that are as favorable as may be permitted under applicable lawLosses included in the amount so stated, including without limitation the Florida Statues and public policy date each such item was paid or incurred, the nature of the State breach of Florida. Accordinglyrepresentation or warranty or other claim resulting in such indemnifiable Losses and the number of Indemnification Escrow Funds requested to be paid to [ ], the parties agree that Escrow Agent shall, subject to the following procedures provisions of Sections 4(c) and presumptions shall apply in the event of any Proceeding or any claim(d) below, issue or matter therein with regard transfer to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever [ ] out of the Company to indemnify Escrow Fund, within 30 days of receipt by the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge Escrow Agent of the facts constituting Officer’s Certificate the basis for number of Indemnification Escrow Funds set forth on such Proceeding or any claimOfficer’s Certificate, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior which shall have a value equal to the Effective Datefull amount of such indemnified Losses, the Indemnitee which value shall notify the Company promptly be determined in writing within the later of accordance with subsection (Xiii) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"Section 4(b). The Upon receipt of such Indemnification Notice Escrow Funds, [-----] shall specify all facts known to the Indemnitee giving rise to cancel such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefromIndemnification Escrow Funds.
(biii) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by For the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right number of Indemnification Escrow Funds to indemnification under be transferred to [-----] out of the Escrow Fund and cancelled by [-----] pursuant to subsection (ii) of this Section 4(b), the Indemnification Escrow Funds shall be valued according to the Base Price (as defined in the Merger Agreement). Whether The Escrow Agent shall have no duty or not obligation to make any determination regarding the foregoing value of Indemnification Escrow Funds or regarding the number of Indemnification Escrow Funds that are necessary to be delivered to [ ].
(iv) If any Indemnification Escrow Funds are retained by the Escrow Agent or transferred to [ ] pursuant to any provisions of this Section 5(d4, such Indemnification Escrow Funds shall be taken from the Escrow Fund in accordance with each Stockholder’s proportionate interest in the Indemnification Escrow Funds, as determined pursuant to Section 3(a )(ii) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceEscrow Agreement.
(ev) The Indemnitee shall Notwithstanding the foregoing, in the event that [-----] reasonably cooperate with the person, persons anticipates that an Indemnified Party will have to pay or entity making such determination incur indemnifiable Losses with respect to facts and circumstances existing on or before the Indemnitee's lack Escrow Termination Date (as defined in Section [Number] of entitlement the Merger Agreement), [ ] shall deliver to both the Stockholder Representative and the Escrow Agent an Officer’s Certificate with respect to such anticipated liability, in accordance with the provisions of this subsection (b). That number of Indemnification Escrow Funds that, in the reasonable judgment of [ ], subject to the objection of the Stockholder Representative and the subsequent arbitration of the claim in accordance with Section 4(d) of this Escrow Agreement, would be necessary to satisfy a claim for indemnification with respect to such anticipated liability, if the Indemnified Party were to prevail in establishing its right to indemnification, including providing to shall remain in the Escrow Fund until such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to claim for indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencebeen resolved.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Escrow Agreement
Claims for Indemnification. It is Any party seeking indemnification hereunder (the intent "Indemnified Party") shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any good faith claim for indemnification hereunder and shall include in such Claim Notice the reasonably estimated amount of such claim, if known (which amount shall not include interest), and a reference to the provision of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event or of any Proceeding other agreement, document or any claim, issue instrument executed hereunder or matter therein with regard to in connection herewith upon which Indemnity will or could such claim is based. Such Claim Notice shall be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event given within thirty (30) days after the Indemnitee has actual knowledge Indemnified Party becomes aware of the facts constituting giving rise to the basis claim for such Proceeding indemnification.
(i) If the Indemnitor shall in good faith dispute the validity of all or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to amount of a claim for indemnification as set forth in the Effective DateClaim Notice, the Indemnitee shall notify the Company promptly in writing Indemnitor shall, within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of its receipt of the facts constituting Claim Notice, execute and deliver to the Indemnified Party a notice setting forth with reasonable particularity the grounds and the basis for such Proceeding upon which the claim or amount of the alleged Losses is disputed (or any claim, issue or matter therein) (such notice, the "Indemnification NoticeDispute Statement"). The Indemnification .
(ii) If the Indemnitor does not dispute the Claim Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate only disputes a portion of the amount set forth therein, then the amount of liability the claim described in the Claim Notice or the portion thereof not disputed shall be deemed to be admitted (including estimated expensesthe "Admitted Liability") arising therefromand shall, upon the incurring of such Losses, immediately be due and payable to the Indemnified Party by the Indemnitor.
(biii) Any indemnification under this Agreement If the Indemnitor shall be made no later than within thirty (30) days after of its receipt of the Claim Notice deliver to the Indemnified Party a Dispute Statement, then the portion of the claim described in the Claim Notice that is disputed by the Company Indemnitor shall not be due and payable, except in accordance with a decision of an arbitrator (as provided in Section 21(b) hereof), or a written agreement by the parties stipulating the amount of the Indemnification Notice, unless Admitted Liability.
(iv) The Indemnitor and the Indemnified Party shall endeavor to resolve any portion of a determination claim described in a Claim Notice that is made disputed by the Indemnitor within sixty (60) days after the date of the applicable Dispute Statement. Any such disputed claims not resolved within such thirty sixty (3060) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed resolved by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described arbitration in the Indemnification Noticeaccordance with Section 21 hereof.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Merger Agreement (Intest Corp)
Claims for Indemnification. It If any Investor Indemnitee or Company -------------------------- Indemnitee (an "Indemnitee") shall believe that such Indemnitee is entitled to ---------- indemnification pursuant to this Section 9 in respect of any Damages, such Indemnitee shall give the intent appropriate Indemnifying Party (which for purposes hereof, in the case of this Agreement an Investor Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to secure the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity hereunder except to the Indemnitee rights of indemnity extent that are as favorable as may be permitted under applicable law, including without limitation such failure adversely affects the Florida Statues and public policy right of the State Indemnifying Party to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of Floridasuch notice either (a) to acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) to object to the claim by giving such Indemnitee written notice of the objection. AccordinglyIf the Indemnifying Party does not object thereto within such twenty (20) business day period, such Indemnitee shall be entitled to be indemnified for all Damages reasonably and proximately incurred by such Indemnitee in respect of such claim. If the Indemnifying Party objects to such claim in a timely manner, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever senior management of the Company and the Investor shall meet to indemnify attempt to resolve such dispute. If the Indemnittee or dispute cannot be resolved by the senior management either party may make a written demand for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, formal dispute resolution and specify therein the Indemnitee shall notify scope of the Company promptly in writing and in any event within dispute. Within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Datewritten notification, the Indemnitee shall notify the Company promptly in writing parties agree to meet for one (1) day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within the later of (X) ten (10) thirty days after the effectiveness of one day mediation, either party may begin litigation proceedings. Nothing in this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee section shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerequire arbitration.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (CMG Information Services Inc)
Claims for Indemnification. It is In order to seek indemnification under Section 7.2 hereof, Parent shall deliver an Officer’s Certificate to the intent of this Agreement to secure for Shareholder Representative and the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation Escrow Agent at any time on or before the Florida Statues and public policy last day of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter thereinEscrow Period; provided, however, that with respect subject to any Proceeding (or any claim, issue or matter thereinthe provisions of Sections 7.2(c), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X7.4(c) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined7.4(d), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel Parent may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement seek and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreementoutside of the Escrow Fund directly from the Principal Shareholders for (i) fraud, or (ii) a breach of the Limited Section 2.2 Representations following the expiration of the Escrow Period by delivering an Officer’s Certificate to the Shareholder Representative on or before the expiration of the applicable statute of limitations. Unless the Shareholder Representative shall have delivered an Objection Notice pursuant to Section 7.4(c) hereof, the Company's articles of incorporationEscrow Agent shall promptly, and in no event later than the bylaws and other obligations thirtieth (30th) day after its receipt of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior Officer’s Certificate, deliver to the commencement of any action pursuant Indemnified Party from the Escrow Fund an amount equal to this Agreement that indemnification is proper under the circumstances because Loss set forth in such Officer’s Certificate. Any payment from the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, Escrow Fund to Indemnified Parties shall be a defense to made in Parent Common Stock, and cash, if applicable, in the action or create a presumption that same proportions as then contained in the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable lawEscrow Fund, the Indemnitee and shall be deemed to have acted in good faith if been made pro rata amongst the Indemnitee's action was Principal Shareholders based on the records aggregate amounts deposited into the Escrow Fund on each such Principal Shareholder’s behalf. For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any officer of Parent: (i) stating that an Indemnified Party has paid, sustained, incurred, or books properly accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (ii) specifying in reasonable detail the individual items of account Losses included in the amount so stated, the date each such item was paid, sustained, incurred, or properly accrued, or the basis for such anticipated liability, and the nature of the Enterprise (as hereinafter defined)misrepresentation, including financial statements, breach of warranty or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein covenant to which the Indemnitee such item is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerelated.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is Promptly after receipt by any indemnified person of a notice of a claim or the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event beginning of any Proceeding or any claim, issue or matter therein with regard action in respect of which indemnity is to which Indemnity will or could be sought under against an indemnifying person pursuant to this under this AgreementSection 8, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee such indemnified person shall notify the Company promptly indemnifying person in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of such claim or of the facts constituting commencement of such action, but the basis omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such Proceeding indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any claimaffiliate or associate thereof, issue or matter thereinthe indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement no indemnifying person shall be made responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no later than thirty (30) days after receipt by the Company event shall any indemnifying person be liable in respect of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described any amounts paid in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement settlement of any action pursuant to this Agreement that indemnification is proper under unless the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption indemnifying person shall have approved the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement terms of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed settlement; provided that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the burden subject matter of proof and the burden of persuasion by clear and convincing evidencesuch proceeding.
(ea) The termination If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified person under subsection 8.1 or 8.2 above in respect of any Proceeding losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying person shall contribute to the amount paid or payable by such indemnified person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Issuer on the one hand and the Purchaser on the other in connection with the statements or omissions or 11 other matters which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, in the case of an untrue statement, whether the untrue statement relates to information supplied by the Issuer on the one hand or the Purchaser(s) on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement. The Issuer and the Purchasers agree that it would not be just and equitable if contribution pursuant to this subsection 8.3(a) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection 8.3(a). The amount paid or payable by an indemnified person as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection 8.3(a) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection 8.3(a), a Purchaser shall not be required to contribute any amount in excess of the amount by which the net amount received by such Purchaser from the sale of the Purchased Units to which such loss relates exceeds the amount of any claim, issue or matter therein, damages which such Purchaser has otherwise been required to pay by judgment, order, settlement or conviction, or upon a plea reason of nolo contendere or such untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Purchaser’s obligations in this subsection to contribute shall be in proportion to its equivalent, sale of Purchased Units to which such loss relates and shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, joint with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulother Purchaser.
(hb) The Company will parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including, without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. The parties are advised that federal or state public policy as interpreted by the courts in certain jurisdictions may be entitled contrary to participate in certain of the Proceeding at its own expenseprovisions of this Section 8, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 8 and further agree not to attempt to assert any such defense.
Appears in 1 contract
Claims for Indemnification. It (a) A party seeking indemnification hereunder (the "Indemnitee") shall give to the party from which indemnification is sought (the intent "Indemnitor") written notice (a "Claim Notice") of any claim which is subject to the indemnity obligations set forth in this Agreement Agreement, with sufficient promptness so as not to secure for prejudice the Indemnitee rights Indemnitor's interests in respect of such claim and any obligation of indemnity that are as favorable as may be permitted under applicable lawarising therefrom. The Claim Notice shall set forth, to the best of the Indemnitee's knowledge, all facts and other information with respect to the claim, including without limitation the Florida Statues and public policy anticipated amount of Losses or reasonable estimate thereof. The failure to give prompt notice shall not affect the rights of the State of Florida. AccordinglyIndemnitee to indemnity hereunder, except to the parties agree extent that such failure either shall have materially prejudiced the following procedures and presumptions shall apply Indemnitor in the event defense of any Proceeding such claim or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, shall have materially increased the Company's Charter or any other obligation whatsoever amount of the Company obligation of the Indemnitor. The Indemnitor receiving a Claim Notice may object to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, such Claim Notice by delivering written notice of such objection to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty ten (3010) days after the Indemnitee has actual knowledge receipt of the facts constituting applicable Claim Notice. If the basis for Indemnitor does not timely object to a Claim Notice in accordance with paragraph (b) of this Section 7.4, the Indemnitor shall, within fifteen (15) days after receipt of the Claim Notice, either (i) pay the amount of the claim set forth in the Claim Notice, if a monetary amount is involved, in accordance with this Section 7, or (ii) if a claim of a third party is involved, have the right to assume the defense of such Proceeding or any claim, issue or matter therein; provided, however, that, if the amount of the claim exceeds the amount of the Indemnitor's obligation to indemnify the Indemnitee hereunder, the Indemnitee may elect to control the defense of such claim. Subject to the preceding sentence, the Indemnitor shall have the exclusive right to conduct and control, through counsel of its own choosing, the defense of any such claim or any action arising therefrom; provided, that in conducting the defense of any such claim or action, the Indemnitor shall, and shall cause its counsel to, consult with the Indemnitee and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitee fully advised of the progress thereof and, provided further, that if the Indemnitee shall have elected to retain control of such defense, the Indemnitee shall, and shall cause its counsel to, consult with the Indemnitor and counsel, if any, selected by it, and shall keep such counsel, if any and the Indemnitor fully advised of the progress thereof. If the Indemnitor fails or refuses to assume the defense and control of the defense of any such claim or action, then the Indemnitee shall conduct and control such defense. So long as the Indemnitor is conducting the defense of any third party claim in accordance with this Section 7.4(a), (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the third party claim, (ii) the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to any Proceeding the third party claim without the prior written consent of the Indemnitor (or any claim, issue or matter therein), that was initiated prior such consent not to be withheld unreasonably) and (iii) the Indemnitor will not consent to the Effective Date, entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnitee shall notify (such consent not to be withheld unreasonably and such consent not to be withheld at all if the Company promptly judgment or settlement contains a full release reasonably satisfactory to the Indemnitee). If the Indemnitee has elected to conduct the defense of a third party claim because the claim is for more than the Indemnitor's obligation hereunder, (i) the indemnitor may retain separate co-counsel at its sole cost and expense and participate in writing the defense of the third party claim and (ii) neither the Indemnitor nor the Indemnitee will consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the other party (such consent not to be withheld unreasonably); and
(b) An Indemnitor may object to a Claim Notice by delivering written notice to the Indemnitee (an "Objection") within the later of (X) ten (10) days after the effectiveness receipt of the applicable Claim Notice. If an Objection has been made, the Indemnitor shall not be required to make any payments under this Section 7 until such Objection is resolved under the terms of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
paragraph (b) of Section 7.4. Once an Objection has been made, the Indemnitor and Indemnitee shall attempt in good faith to agree upon the rights of the respective parties with respect to the claim or claims relating to the Claim Notice. Any indemnification under this Agreement such agreement shall be made no later than thirty set forth in a written memorandum signed by both parties. If the parties cannot come to such agreement within ten (3010) days after receipt by the Company Indemnitee of the Indemnification NoticeObjection, unless a determination is made within the matter shall be resolved by submission to arbitration in San Diego, California. Except as specifically provided in this paragraph (b), such thirty matter shall be resolved in accordance with the commercial arbitration rules of the American Arbitration Association then in effect (30) day period by (X) the Board "AAA Rules"), by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to single arbitrator mutually selected by the Company, in a written opinion (which counsel Indemnitor and Indemnitee. The arbitrator shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed governed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have apply the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations substantive law of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden State of proof California and the burden Federal Rules of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith Evidence in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees their determination, and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne conclusive and binding upon the Indemnitor and Indemnitee. Any judgment upon an award rendered by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment arbitrator may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved entered in any manner court having jurisdiction over the subject matter thereof. If any party initiates an action (other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification arbitration under this Agreement with respect Section 7.4) asserting claims subject to any settlement unless arbitration under this Section 7, and another party successfully stays or dismisses such action and/or compels arbitration of said claims, the Company party filing said action shall have consented to pay the other party's costs and expenses reasonably incurred in seeking such settlementstay, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencedismissal and/or compelling arbitration, including reasonable attorney's fees.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings Buyer's Claim shall arise, to obtain arise for indemnification under this AgreementArticle X, the Indemnitee I-FLOW shall notify the Company promptly in writing VMI Shareholders and in any event within thirty (30) days after the Indemnitee has actual knowledge INFUSYSTEM Shareholders of the Buyer's Claim and, when known, the facts constituting the basis for such Proceeding Claim. In the event of any Claim for indemnification hereunder resulting from or in connection with any claimlegal proceedings by a third party, issue or matter therein; providedsuch notice shall also specify, howeverif known, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of the liability (including estimated expenses) arising therefrom.
. I-FLOW and I-FLOWSUB shall give the VMI Shareholders and the INFUSYSTEM Shareholders a reasonable opportunity to defend any such Buyer's Claim at their own expense and with counsel of their own selection and reasonably acceptable to I-FLOW, provided that I-FLOW and I-FLOWSUB shall at all times also have the right to fully participate in the defense at their own expense. If the VMI Shareholders and the INFUSYSTEM Shareholders shall, within a reasonable time after notice, fail to defend, I-FLOW and I-FLOWSUB shall have the right to undertake the defense of, and to compromise or settle (bexercising reasonable business judgment) Any indemnification under this Agreement the Buyer's Claim on behalf, for the account, and at the risk of, the VMI Shareholders and the INFUSYSTEM Shareholders. I-FLOW shall be made no later than thirty (30) days after receipt by notify the Company VMI Shareholders and the INFUSYSTEM Shareholders in writing of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote existence of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the IndemniteeBuyer's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant Claim to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof VMI Shareholders and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that INFUSYSTEM Shareholders' indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conductwould apply, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or but failure to act, of any director, officer, agent or employee of so notify the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof VMI Shareholders and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.INFUSYSTEM
Appears in 1 contract
Sources: Merger Agreement (I Flow Corp /Ca/)
Claims for Indemnification. It is Promptly after receipt by any indemnified person of a notice of a claim or the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event beginning of any Proceeding or any claim, issue or matter therein with regard action in respect of which indemnity is to which Indemnity will or could be sought under against an indemnifying person pursuant to this under this AgreementSection 8, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee such indemnified person shall notify the Company promptly indemnifying person in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of such claim or of the facts constituting commencement of such action, but the basis omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person's ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such Proceeding indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any claimaffiliate or associate thereof, issue or matter thereinthe indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement no indemnifying person shall be made responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no later than thirty (30) days after receipt by the Company event shall any indemnifying person be liable in respect of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described any amounts paid in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement settlement of any action pursuant to this Agreement that indemnification is proper under unless the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption indemnifying person shall have approved the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement terms of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed settlement; provided that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the burden subject matter of proof and the burden of persuasion by clear and convincing evidencesuch proceeding.
(ea) The termination If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified person under subsection 8.1 or 8.2 above in respect of any Proceeding losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying person shall contribute to the amount paid or payable by such indemnified person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Issuer on the one hand and the Purchaser(s) on the other in connection with the statements or omissions or other matters which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, in the case of an untrue statement, whether the untrue statement relates to information supplied by the Issuer on the one hand or the Purchaser(s) on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement. The Issuer and the Purchasers agree that it would not be just and equitable if contribution pursuant to this subsection 8.3(a) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection 8.3(a). The amount paid or payable by an indemnified person as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection 8.3(a) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection 8.3(a), a Purchaser shall not be required to contribute any amount in excess of the amount by which the net amount received by such Purchaser from the sale of the Purchased Shares to which such loss relates exceeds the amount of any claim, issue or matter therein, damages which such Purchaser has otherwise been required to pay by judgment, order, settlement or conviction, or upon a plea reason of nolo contendere or such untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Purchaser's obligations in this subsection to contribute shall be in proportion to its equivalent, sale of Purchased Shares to which such loss relates and shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, joint with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawfulother Purchaser.
(hb) The Company will parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including, without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. The parties are advised that federal or state public policy as interpreted by the courts in certain jurisdictions may be entitled contrary to participate in certain of the Proceeding at its own expenseprovisions of this Section 8, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 8 and further agree not to attempt to assert any such defense.
Appears in 1 contract
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's ’s Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "“Indemnification Notice"”). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's ’s lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's ’s articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's ’s action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's ’s lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's ’s lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' ’ fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's ’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(eg) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Sources: Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in In the event of any Proceeding it shall appear that an -------------------------- event giving rise to indemnification hereunder has occurred or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreementis threatened, the Indemnitee shall notify provide the Company promptly Indemnitor with prompt written notice thereof, stating that such event has occurred or is threatened, describing such event in writing reasonable detail the specifying or reasonably estimating the amount of the Losses and the method of computation thereof, all with reasonable particularity and containing a reference to the provision(s) of this Agreement in respect of which such right of indemnification is claimed or arises (the "Notice of Claim"). The Indemnitee shall be deemed to have waived its right to indemnification for any Losses for which notice is not given in a timely manner as set forth herein if and to the extent that the Indemnitor can show that such failure to give timely notice has materially prejudiced the Indemnitor's ability to defend or otherwise respond to such claim. For purposes hereof, any claim for indemnification shall be deemed to have been made as of the date on which the Notice of Claim is delivered to the Indemnitor.
(i) In the event the Indemnitor shall in good faith dispute the validity of all or any amount of a claim for indemnification as set forth in the Notice of Claim, the Indemnitor shall, within thirty (30) days after of its receipt of the Notice of Claim, execute and deliver to the Indemnitee has actual knowledge of a notice setting forth with reasonable particularity the facts constituting grounds and the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding upon which the claim and/or amount of Loss is disputed (or any claim, issue or matter thereinthe "Dispute Statement"), that was initiated prior to .
(ii) In the Effective Date, event the Indemnitee Indemnitor shall notify the Company promptly in writing not within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of its receipt of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known of Claim deliver to the Indemnitee giving rise to such indemnification right and a Dispute Statement or the amount or an estimate Indemnitor shall dispute only a portion of the amount set forth in the Notice of liability Claim, then the amount of the claim described in the Notice of Claim or the portion thereof not disputed shall be deemed to be admitted (including estimated expensesthe "Admitted Liability") arising therefromand shall, upon the incurring of such Loss, immediately be due and payable to the Indemnitee by the Indemnitor.
(biii) Any indemnification under this Agreement In the event the Indemnitor shall be made no later than within thirty (30) days after of its receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote Notice of a quorum consisting of directors who were not parties Claim deliver to the Proceeding Indemnitee a Dispute Statement, then the portion of the claim described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to Notice of Claim that is disputed by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise Indemnitor shall not be imputed to due and payable, except in accordance with a final and unappealable decision of a court of competent jurisdiction, or a written agreement by the Indemnitee for purposes of determining parties stipulating the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests amount of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceAdmitted Liability.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
Appears in 1 contract
Claims for Indemnification. It If any Investor Indemnitee or -------------------------- Company Indemnitee (an "INDEMNITEE") shall believe that such Indemnitee is ---------- entitled to indemnification pursuant to this Section 10 in respect of any Damages, such Indemnitee shall give the intent appropriate Indemnifying Party (which for purposes hereof, in the case of this Agreement an Investor Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to secure the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity hereunder except to the Indemnitee rights of indemnity extent that are as favorable as may be permitted under applicable law, including without limitation such failure adversely affects the Florida Statues and public policy right of the State Indemnifying Party to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of Floridasuch notice either (a) to acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) to object to the claim by giving such Indemnitee written notice of the objection. AccordinglyIf Indemnifying Party does not object thereto within such twenty (20) business day period, such Indemnitee shall be entitled to be indemnified for all Damages reasonably incurred by such Indemnitee in respect of such claim. If the Indemnifying Party objects to such claim in a timely manner, the senior management of the Company and the Investor shall meet to attempt to resolve such dispute. If the dispute cannot be resolved by the senior management either party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within thirty days after such written notification, the parties agree that the following procedures to meet for one day with an impartial mediator and presumptions shall apply in the event consider dispute resolution alternatives other than litigation. If an alternative method of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event dispute resolution is not agreed upon within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claimone day mediation, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly either party may begin litigation proceedings. Nothing in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall be made no later than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee section shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencerequire arbitration.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
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Sources: Securities Purchase Agreement (Number Nine Visual Technology Corp)
Claims for Indemnification. It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever After an Indemnified Person becomes aware of any Proceedings claim such Indemnified Person has under Section 9.1 or Section 9.2 that might result in a Loss (a “Liability Claim”), such Indemnified Person shall arisewith reasonable promptness deliver a notice of such Liability Claim (a “Claims Notice”) (i) in the case of a Liability Claim under Section 9.1, to obtain indemnification the Principal Shareholders and the Escrow Agent, (ii) (A) in the case of a Liability Claim under this Agreement, Section 9.2(a) or (B) for fraud (the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein“Excluded Items”), that was initiated prior to the Effective Date, the Indemnitee shall notify the applicable Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter thereinShareholder(s) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known with a copy to the Indemnitee giving rise Class A Holder), or (iii) in the case of a Liability Claim under Section 9.2(b), to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefromPurchaser.
(b) Any indemnification under this Agreement A Claims Notice shall (i) be signed by an officer or other authorized Person of the Indemnified Person (or in the case that the Indemnified Person is an individual, by such Individual), (ii) state that an Indemnified Person has incurred, paid or properly accrued, or reasonably anticipates that it may incur, pay or properly accrue, Losses, (iii) state the amount of such Losses (which, in the case of Losses not yet incurred, paid or properly accrued, shall be made no later than thirty a good faith estimate of those anticipated to be incurred, paid or properly accrued), and (30iv) days after receipt specify in reasonable detail (based upon the information then possessed by such Indemnified Person) the Company individual items of such Losses included in the amount so stated and the nature of the Indemnification Notice, unless a determination is made within claim to which such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors Losses are parties to the Proceeding described in the Indemnification Noticerelated.
(c) If and when No delay in or failure to give a determination with respect Claims Notice by an Indemnified Person to the Indemnitee's lack of entitlement to indemnification hereunder is made Indemnifying Person pursuant to this Section 5(b), 9.5 will adversely affect any of the person rights or persons or entity making such determination shall first presume remedies that the Indemnitee is entitled to indemnification Indemnified Person has under this Agreement and shall thereafter have or alter or relieve the burden Indemnifying Person of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company their obligation to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof Indemnified Persons, except and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement extent that indemnification (i) the Claims Notice is proper under the circumstances because the Indemnitee has met not provided within the applicable standard of conduct, nor an actual determination by the Company time limit set forth in Section 9.4 or (including by its directors or Independent Counselii) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, delay or failure to act, of any director, officer, agent or employee of has actually prejudiced the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidenceIndemnifying Person.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of such Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Proceeding at its own expense.
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