Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc to enforce this Agreement that it is not permissible under applicable law for Tyco International plc to indemnify Indemnitee for the amount claimed. (ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc. (iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. (iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. (v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law. (vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement. (vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or payment of Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or payment of Expense Advances) under this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approvalapproval and whether with or without an admission of liability on the part of the Indemnitee), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(viv) For purposes of any determination of good faith, to the fullest extent permitted by lawunder this Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s action is was based on good faith reliance on the records or books of account of any Enterprisethe Company or another enterprise, including financial statements, or on information supplied to Indemnitee by the management directors or officers of such Enterprise the Company or another enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or another enterprise or on information or records given or reports made to such Enterprise the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The term “another enterprise” as used in this Section 4(c)(iv) shall mean any other corporation or any partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent. For purposes of this Agreement, references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such Enterprise. director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries, and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company.” The provisions of this Section 4(c)(v4(c)(iv) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 3(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 3(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company.
(iiiiv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Westell Technologies Inc)
Defense to Indemnification, Burden of Proof and Presumptions. (ia) To the maximum extent permitted by applicable law, in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1 of this Agreement, and the Reviewing Party shall place the burden of proof on the Company to overcome that presumption in connection with the making of any determination contrary to that presumption.
(b) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, ; provided that the burden of proving such a defense or determination Indemnitee is not entitled to indemnification shall be on Tyco International plcthe Company.
(iiic) Neither The following shall not be defenses to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief or understanding: (i) the failure of the Reviewing Party to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable lawor had any particular belief or understanding, nor or (ii) an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable such standard of conductconduct or did not have such belief or understanding.
(ivd) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that (i) Indemnitee did not meet any particular standard of conduct or have any particular belief or understanding or (ii) that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company.
(iiiiv) Neither It is the parties’ intention that, if the Company contests Indemnitees right to indemnification, the question of Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable lawbelief.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Electro Scientific Industries Inc)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by the Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for Tyco International plc the Company to indemnify the Indemnitee for the amount claimed.
(ii) . In connection with any action or any determination by the Reviewing Party or otherwise as to whether the Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination right to indemnification shall be on Tyco International plc.
(iii) the Indemnitee. Neither the failure of the Reviewing Party Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee he has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party Company (including its Board of Directors, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgment, order, settlement (whether with or without court approval), ) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not MTI Technology Corporation meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plcthe Company.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders ) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or of books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable lawthis Agreement.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc the Company is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plcthe Company.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or of books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc the Company is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action action, suit, litigation, proceeding or arbitration brought by Indemnitee against Tyco International Mallinckrodt plc to enforce this Agreement that it is not permissible under applicable law for Tyco International Mallinckrodt plc to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action action, suit, litigation, proceeding or arbitration or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International Mallinckrodt plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action action, suit, litigation, proceeding or arbitration by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action action, suit, litigation, proceeding or arbitration or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, litigation, proceeding or proceedingarbitration, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee ▇▇▇▇▇▇▇▇▇▇ shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International Mallinckrodt plc shall be precluded from asserting in any judicial action, suit, litigation, proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International Mallinckrodt plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition, subject to Section 4(d)) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by adverse judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (ia) To the maximum extent permitted by applicable law, in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1 of this Agreement, and the Reviewing Party shall place the burden of proof on the Company to overcome that presumption in connection with the making of any determination contrary to that presumption.
(b) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, ; provided that the burden of proving such a defense or determination Indemnitee is not entitled to indemnification shall be on Tyco International plcthe Company.
(iiic) Neither The following shall not be defenses to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief or understanding: (i) the failure of the Reviewing Party to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable lawor had any particular belief or understanding, nor an actual determination by or (ii) the Reviewing Party Party’s determination that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable such standard of conductconduct or did not have such belief or understanding.
(ivd) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that (i) Indemnitee did not meet any particular standard of conduct or have any particular belief or understanding or (ii) that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any action such action, or any determination by the Reviewing Party Company (including by its directors, Independent Counsel or otherwise its stockholders) or otherwise, as to whether Indemnitee is entitled to be indemnified hereunderindemnified, or is entitled to an Expense Advance, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company by clear and convincing evidence, and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party Company (including by its directors, Independent Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party Company (including by its directors, Independent Counsel or its stockholders) that the Indemnitee had is not entitled to Indemnification or an Expense Advance or has not met such the applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement. Neither such failure to have made the determination, to nor an actual determination that the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based Indemnitee relied on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
. If the person or persons so empowered to make a determination pursuant to Section 3 hereof shall have failed to make the requested determination within ninety (vii90) To days after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or its equivalent, or other disposition or partial disposition of any Proceeding or any other event that could enable the fullest extent permitted by lawCompany to determine Indemnitee’s entitlement to indemnification, Tyco International plc the requisite determination that Indemnitee is entitled to indemnification shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant deemed to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.have been made
Appears in 1 contract
Sources: Indemnification Agreement (FiscalNote Holdings, Inc.)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, (1) the termination of any claimProceeding, action, suit, or proceedingclaim, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
, and (v2) For Indemnitee shall be deemed, for purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or other covered enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 4(c)(v5(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, conviction or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s 's action is based on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker, compensation consultant, or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company.
(iiiiv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its shareholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company.
(iiiiv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or Expense Advances) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement or a request for Expense Advances in accordance with Section 2(c), and the Company shall have the burden of proof by clear and convincing evidence to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company by clear and convincing evidence.
(iiiiv) Neither the failure of the Reviewing Party or the Company (including its Board, Independent Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, Independent Counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc ▇▇▇▇▇▇▇ Controls to enforce this Agreement that it is not permissible under applicable law for Tyco International plc ▇▇▇▇▇▇▇ Controls to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc▇▇▇▇▇▇▇ Controls.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc ▇▇▇▇▇▇▇ Controls shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc ▇▇▇▇▇▇▇ Controls is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or payment of Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or payment of Expense Advances) under this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, Proceeding by judgment, order, settlement (whether with or without court approvalapproval and whether with or without an admission of liability on the part of the Indemnitee), conviction, or upon a plea of nolo contendere, or its equivalent, shall notnot create a presumption that 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, of itselfwith respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful or create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(iv) 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 to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(v) For purposes of any determination of good faith, to the fullest extent permitted by lawunder this Agreement, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any the Enterprise, including without limitation financial statements, or on information supplied to Indemnitee by the management directors or officers of such the Enterprise in the course of their duties, or on the advice of legal counsel for such the Enterprise or on information or records given or reports made to such the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by such the Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable lawthis Agreement. Whether or not the foregoing provisions of this Section 4(c)(v) are satisfied, it shall in any event be presumed that 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.
(vi) The knowledge and/or or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any the Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc ▇▇▇▇▇▇▇ Controls to enforce this Agreement that it is not permissible under applicable law for Tyco International plc ▇▇▇▇▇▇▇ Controls to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc▇▇▇▇▇▇▇ Controls.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee ▇▇▇▇▇▇▇▇▇▇ has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc ▇▇▇▇▇▇▇ Controls shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc ▇▇▇▇▇▇▇ Controls is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Deed of Indemnification (Johnson Controls International PLC)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for the advancement of Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination proof shall be on Tyco International plc.
(iii) the Company to establish that Indemnitee is not so entitled. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, conviction or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s 's action is based on the records or books of account of any Enterprisethe Company, an Affiliate, or another enterprise, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company, an Affiliate, or another enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise the Company, an Affiliate, or another enterprise or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company, an Affiliate, or another enterprise by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board, an Affiliate, or another enterprise. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shallthe Company, to the fullest extent permitted by law, an Affiliate or another enterprise shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a), and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption. 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 in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify or to make an Advance of Expenses to Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, proceeding or proceedingmatter therein, by judgment, order, settlement (whether with or without court approvalapproval and whether with or without an admission of liability on the part of the Indemnitee), conviction, or upon a plea of nolo contendere, contendere or its equivalent, shall not, not create of itself, create itself a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(viv) For purposes of any determination of good faith, to the fullest extent permitted by lawunder this Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s action is was based on good faith reliance on the records or books of account of any Enterprisethe Company or another enterprise, including financial statements, or on information supplied to Indemnitee by the management directors or officers of such Enterprise the Company or another enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or another enterprise or on information or records given or reports made to such Enterprise the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The term “another enterprise” as used in this Section 4(c)(iv) shall mean any other corporation or any partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent. For purposes of this Agreement, references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such Enterprise. director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries, and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company.” The provisions of this Section 4(c)(v4(c)(iv) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action action, suit, litigation, proceeding or arbitration brought by Indemnitee against Tyco International Mallinckrodt plc to enforce this Agreement that it is not permissible under applicable law for Tyco International Mallinckrodt plc to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action action, suit, litigation, proceeding or arbitration or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International Mallinckrodt plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action action, suit, litigation, proceeding or arbitration by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action action, suit, litigation, proceeding or arbitration or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, litigation, proceeding or proceedingarbitration, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International Mallinckrodt plc shall be precluded from asserting in any judicial action, suit, litigation, proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International Mallinckrodt plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any action such action, or any determination by the Reviewing Party Company (including by its directors, Independent Counsel, or otherwise its stockholders) or otherwise, as to whether the Indemnitee is entitled to be indemnified hereunderindemnified, or is entitled to an Expense Advance, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party Company (including by its directors, Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee I▇▇▇▇▇▇▇▇▇ has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party Company (including by its directors, Independent Counsel or its stockholders) that the Indemnitee had is not entitled to indemnification or an Expense Advance or has not met such the applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement. Neither such failure to have made the determination, to nor an actual determination that the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based Indemnitee relied on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent agent, or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (ConnectM Technology Solutions, Inc.)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc 92687367_2 the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, it will be presumed that Indemnitee is entitled to indemnification under this Agreement, and that the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) or any other person or entity challenging such right will have the burden of proving such a this defense or determination shall be on Tyco International plc.
(iii) and overcoming Indemnitee’s presumption. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgmentjudgment not subject to appeal, order, settlement (whether with or without court approval), conviction, conviction or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Investment Agreement (eHealth, Inc.)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc Management to enforce this Agreement that it is not permissible under applicable law for Tyco International plc Management to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plcManagement.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee ▇▇▇▇▇▇▇▇▇▇ has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee ▇▇▇▇▇▇▇▇▇▇ shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc Management shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc Management is bound by all the provisions of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Johnson Controls International PLC)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) Neither the Company to establish by clear and convincing evidence that Indemnitee is not so entitled to indemnification. It is the parties’ intention that if Indemnitee commences legal proceedings to secure a judicial determination that Indemnitee should be indemnified under this Agreement or applicable law, the question of Indemnitee’s right to indemnification shall be for the court to decide, as a de novo trial on the merits and Indemnitee shall not be prejudiced in any way by reason of an adverse determination. In addition, neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or Expense Advances) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement or a request for Expense Advances in accordance with Section 2(c), and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its disposition where the required undertaking has been tendered to the Company) that it (i) payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (ii) indemnification is being sought with respect to a transaction in which Indemnitee derived an improper personal benefit or for any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company or duty owed by Indemnitee to the Company or any of its subsidiaries; (iii) indemnification is being sought for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; (iv) such indemnification is not permissible lawful under any applicable law statute or public policy (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for Tyco International plc liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to indemnify Indemnitee appropriate courts for adjudication); (v) indemnification is being sought in connection with a Proceeding arising out of or connected with the amount claimedIndemnitee's employment with the Company or the termination of that employment, including without limitation, claims of wrongful discharge, emotional distress, defamation, fraud, breach of contract, breach of the covenant of good faith and fair dealing, any claims of discrimination or harassment based on sex, age, race, national origin, disability or on any other basis, under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, and all other laws and regulations relating to employment.
(iiiii) In connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plcthe Company.
(iiiiv) Neither the failure of the Reviewing Party or the Company (including its Board, Independent Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, Independent Counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the admissible as evidence in any such action or create a presumption that the Indemnitee has not met the applicable standard of conductfor any purpose.
(ivv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under this Agreement or applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunderunder this Agreement, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company and any decision that Indemnitee is not entitled to indemnification must be supported by clear and convincing evidence. Neither the failure of the Reviewing Party or the Company to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or the Company that the Indemnitee had not met such applicable standard of conduct, shall, of itself, conduct shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, . In making a determination with respect to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, the person or persons or entity making such determination shall presume that Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Any action, or failure to act, by Indemnitee based on Indemnitee’s action is based good faith reliance on the records or books of account of the Company and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the written request of the Company as a director, officer, employee, agent or fiduciary (as applicable, the “Enterprise”), including financial statements, or on information supplied to Indemnitee by the management officers of such the Enterprise in the course of their duties, or on the advice of legal counsel for such the Enterprise or on information or records given or reports made to such the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by such Enterprise. The provisions the Enterprise shall not, in and of this Section 4(c)(v) shall not be deemed itself, constitute grounds for an adverse determination with respect to whether Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be exclusive in or not opposed to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met best interests of the applicable standard of conduct set forth in applicable law.
(vi) The Company. In addition, the knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any the Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (viii) To create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in the fullest extent permitted by lawbest interests of the Company and/or its shareholders, Tyco International plc shall be precluded from asserting in and, with respect to any judicial proceeding criminal Proceeding, that Indemnitee had reasonable cause to believe that his or arbitration commenced pursuant her conduct was unlawful or (ii) otherwise adversely affect the rights of Indemnitee to this Agreement that the procedures indemnification or presumptions advancement of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of Expenses under this Agreement, except as may be provided herein.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, it will be presumed that Indemnitee is entitled to indemnification under this Agreement, and that the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) or any other person or entity challenging such right will have the burden of proving such a this defense or determination shall be on Tyco International plc.
(iii) and overcoming Indemnitee’s presumption. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgmentjudgment not subject to appeal, order, settlement (whether with or without court approval), conviction, conviction or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or an Expense Advance) under this Agreement:
(i) It the Reviewing Party shall presume that Indemnitee is entitled to indemnification (or an Expense Advance) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption;
(ii) it shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.Indemnifiable Event asserted by Indemnitee;
(iiiii) In in connection with any action or any determination by the Reviewing Party or otherwise brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination Indemnitee is not entitled to indemnification under this Agreement shall be on Tyco International plc.the Company;
(iiiiv) Neither neither the failure of the Reviewing Party or the Company (including its Board, Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, Independent Counsel or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.;
(ivv) For for purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.;
(vvi) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company or any EnterpriseSubsidiary, including financial statementsstatements (other than any such records, books or financial statements for whose preparation Indemnitee was primarily responsible), or on information supplied to Indemnitee by the management officers of such Enterprise the Company or any Subsidiary in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or any Subsidiary or on information or records given or reports made to such Enterprise the Company or any Subsidiary by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by such Enterprisethe Company or any Subsidiary. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way In addition, the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the Company or any Enterprise shall, to the fullest extent permitted by law, Subsidiary shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To . Whether or not the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the foregoing provisions of this AgreementSection 4(c)(vi) are satisfied, it shall in any event be presumed that 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 and each Subsidiary. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any action such action, or any determination by the Reviewing Party or otherwise otherwise, as to whether Indemnitee is entitled to be indemnified hereunderindemnified, or is entitled to an Expense Advance, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee had is not entitled to Indemnification or an Expense Advance or has not met such the applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement. Neither such failure to have made the determination, to nor an actual determination that the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based Indemnitee relied on the records or books of account of any Enterprisethe Company, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (ia) To the maximum extent permitted by applicable law, in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1 of this Agreement, and the Reviewing Party shall place the burden of proof on the Company to overcome that presumption in connection with the making of any determination contrary to that presumption.
(b) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, ; provided that the burden of proving such a defense or determination Indemnitee is not entitled to indemnification shall be on Tyco International plcthe Company.
(iiic) Neither The following shall not be defenses to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief or understanding: (i) the failure of the Reviewing Party to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable lawor had any particular belief or understanding, nor an actual determination by or (ii) the Reviewing Party Party's determination that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable such standard of conductconduct or did not have such belief or understanding.
(ivd) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that (i) Indemnitee did not meet any particular standard of conduct or have any particular belief or understanding or (ii) that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be a defense to any action Proceeding brought by Indemnitee against Tyco International plc the Company to enforce this Agreement (other than a Proceeding brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) . In connection with any action such Proceeding or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its members) to have made a determination prior to the commencement of such action Proceeding by Indemnitee that indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its members) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action Proceeding or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceedingProceeding, by judgment, order, settlement (whether with or without court approval), conviction, conviction or upon a plea of nolo contendere, contendere or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) . For purposes of any determination of good faith, to the fullest extent permitted by lawfaith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action Proceeding is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management officers of such Enterprise the Company in the course of their duties, or on the advice of legal counsel for such Enterprise the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to such Enterprise the Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by such Enterprisethe Company or the Board or any committee of the Board. The provisions of this Section 4(c)(v) the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) conduct. The knowledge and/or actions, or failure to act, of or any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, Company shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) It shall be ------------------------------------------------------------ a defense to any action brought by the Indemnitee against Tyco International plc the Company to enforce this Agreement (other than an action brought to enforce a claim for expenses incurred in defending a claim in advance of its final disposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Florida Business Corporation Act for Tyco International plc the Company to indemnify the Indemnitee for the amount claimed.
(ii) . In connection with any action or any determination by the Reviewing Party or otherwise as to whether the Indemnitee is entitled to be indemnified hereunder, the burden of proving providing such a defense or determination shall be on Tyco International plc.
(iii) the Company. Neither the failure of the Reviewing Party Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification Indemnification of the Indemnitee claimant is proper under the circumstances because Indemnitee he or she has met the applicable standard of conduct set forth in applicable lawthe Florida Business Corporation Act, nor an actual determination by the Reviewing Party Company (including its Board of Directors, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall, of itself, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) . For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, suit or proceeding, by judgment, order, settlement (whether with or without court approval), ) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or payment of Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or payment of Expense Advances) under this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against Tyco International plc the Company to enforce this Agreement that it is not permissible under applicable law for Tyco International plc the Company to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Tyco International plc.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approvalapproval and whether with or without an admission of liability on the part of the Indemnitee), conviction, or upon a plea of nolo contendere, or its equivalent, shall notnot create a presumption that 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, of itselfwith respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful or create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(iv) 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 action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(v) For purposes of any determination of good faith, to the fullest extent permitted by lawunder this Agreement, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any the Enterprise, including without limitation financial statements, or on information supplied to Indemnitee by the management directors or officers of such the Enterprise in the course of their duties, or on the advice of legal counsel for such the Enterprise or on information or records given or reports made to such the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by such the Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable lawthis Agreement. Whether or not the foregoing provisions of this Section 4(c)(v) are satisfied, it shall in any event be presumed that 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.
(vi) The knowledge and/or or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any the Enterprise shall, to the fullest extent permitted by law, shall not be imputed to Indemnitee for purposes of determining any the right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Tyco International plc shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco International plc is bound by all the provisions of this Agreement.
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