Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation: (a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct; (c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled; (d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement; (e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or (f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 26 contracts
Sources: Indemnification Agreement (CymaBay Therapeutics, Inc.), Employment Agreement (Verenium Corp), Employment Agreement (Verenium Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 22 contracts
Sources: Indemnification Agreement (Internap Network Services Corp), Indemnification Agreement (Wind River Systems Inc), Indemnification Agreement (Affymax Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.the
Appears in 19 contracts
Sources: Indemnification Agreement (Vixel Corp), Indemnification Agreement (Introbiotics Phamaceuticals Inc), Indemnification Agreement (Ipass Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.powers
Appears in 15 contracts
Sources: Indemnification Agreement (Chordiant Software Inc), Indemnification Agreement (Elitra Pharmaceuticals Inc), Indemnification Agreement (Biomedicines Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.powers
Appears in 15 contracts
Sources: Indemnification Agreement (Ask Jeeves Inc), Indemnification Agreement (Exelixis Inc), Indemnification Agreement (Butterfield & Butterfield Auctioneers Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 13 contracts
Sources: Indemnity Agreement (Coulter Pharmaceuticals Inc), Indemnification Agreement (Volterra Semiconductor Corp), Separation and Consulting Agreement (Clarent Corp/Ca)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(ai) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(bii) on account of Agent’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(ciii) on account of Agent’s conduct that is established by a final judgment as constituting constituted a breach of Agent’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(div) for which payment is actually has been made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(ev) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fvi) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
(b) Within thirty (30) days of receipt of a notice pursuant to Section 7, the Corporation (or the Independent Legal Counsel, if applicable) shall make an initial good faith determination of Agent’s entitlement to indemnification pursuant to this Agreement and shall notify Agent (and the Corporation, if Independent Legal Counsel is making such determination) promptly of such determination. If at any time thereafter the Corporation (or the Independent Legal Counsel, as applicable) in good faith determines that any indemnification requested pursuant to this Agreement is prohibited pursuant to Section 4(a), the Corporation shall promptly provide notice of such determination to Agent (and the Corporation, if applicable). Any determination by the Corporation pursuant to this Section 4(b) shall be made by the Corporation’s Board of Directors.
Appears in 13 contracts
Sources: Indemnification Agreement (Solexa, Inc.), Indemnification Agreement (Solexa, Inc.), Indemnification Agreement (Solexa, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 10 contracts
Sources: Indemnification Agreement (Titanium Asset Management Corp), Indemnification Agreement (Titanium Asset Management Corp), Indemnification Agreement (Archemix Corp.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCompany:
(ai) in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
ii) on account of any claim suit in which judgment is rendered against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(biii) on account of Agent’s Indemnitee's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest or that constituted to constitute willful misconduct;
(civ) on account of Agent’s Indemnitee's conduct that which is established the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
v) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b) hereof) initiated by the Indemnitee unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
vi) if a final decision by a final judgment as constituting a breach of Agent’s duty of loyalty to Court having jurisdiction in the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under matter shall determine that such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); orand
vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(fb) in connection No indemnity pursuant to Section 1 or 2 hereof shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any proceeding (or part thereofof the following:
i) initiated Any solicitation of proxies by AgentIndemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in writing) to act together for the purpose of soliciting proxies, in opposition to any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized solicitation of proxies approved by the Board of Directors Directors.
ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofCompany.
Appears in 10 contracts
Sources: Indemnification Agreement (Digital Island Inc), Indemnification Agreement (Portal Software Inc), Indemnification Agreement (Wireless Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 8 contracts
Sources: Indemnification Agreement (Local Matters Inc.), Indemnification Agreement (Local Matters Inc.), Indemnification Agreement (Enernoc Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim or proceeding against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law, provided, however, if and when Agent ultimately establishes in any such proceeding that no recovery of profits from Agent is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 4(a), indemnification pursuant to this Agreement shall then be permitted;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board board of Directors directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 7 contracts
Sources: Indemnification Agreement (Myriad Genetics Inc), Indemnification Agreement (Rib-X Pharmaceuticals, Inc.), Indemnification Agreement (BG Medicine, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) Corporation under this agreement: on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) ; on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) ; on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) ; for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) ; if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) or in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 5 contracts
Sources: Employment Agreement (NPS Pharmaceuticals Inc), Employment Agreement (NPS Pharmaceuticals Inc), Employment Agreement (NPS Pharmaceuticals Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, nonappealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of AgentIndemnitee’s conduct that is established by a final final, nonappealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent Indemnitee under (i) a valid and collectible insurance policy, including under any policy of insurance purchased and maintained on Indemnitee’s behalf by the Corporation or (ii) under a valid and enforceable indemnity clause, bylaw bylaw, or agreement, except including, but not limited to, an indemnity clause, bylaw, or agreement relating to another corporation, partnership, joint venture, trust, or other enterprise for which Indemnitee is or was serving as a director or officer at the request of the Corporation; provided, that indemnity pursuant to Section 2 hereof shall be paid by the Corporation in respect of any excess beyond payment actually received by Indemnitee under such insuranceinsurance policy, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (andcontrary to law, in this respecteither as a matter of public policy, both or under the Corporation and Agent have been advised that provisions of the Federal Securities Act of 1933, as amended, the Securities and Exchange Commission believes that indemnification for liabilities arising under Act of 1934, as amended, the federal securities laws is against public policy and isNRS, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)or any other applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the Board has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeNRS, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 5 contracts
Sources: Indemnification Agreement (Relmada Therapeutics, Inc.), Indemnification Agreement (Relmada Therapeutics, Inc.), Indemnification Agreement (Relmada Therapeutics, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of Agent’s Indemnitee's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on On account of Agent’s Indemnitee's conduct that is established by a final judgment as constituting constituted a breach of Agent’s Indemnitee's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(d) for For which payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws; or
(f) in In connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 5 contracts
Sources: Severance Agreement (Commonwealth Energy Corp), Confidential Settlement Agreement (Commerce Energy Group Inc), Employment Agreement (Commonwealth Energy Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, non-appealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of AgentIndemnitee’s conduct that is established by a final final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent Indemnitee under (i) a valid and collectible insurance policy, including under any policy of insurance purchased and maintained on Indemnitee’s behalf by the Corporation or (ii) under a valid and enforceable indemnity clause, bylaw bylaw, or agreement, except including, but not limited to, an indemnity clause, bylaw, or agreement relating to another corporation, partnership, joint venture, trust, or other enterprise for which Indemnitee is or was serving as a director or officer at the request of the Corporation; provided, that indemnity pursuant to Section 2 hereof shall be paid by the Corporation in respect of any excess beyond payment actually received by Indemnitee under such insuranceinsurance policy, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (andcontrary to law, in this respecteither as a matter of public policy, both or under the Corporation and Agent have been advised that provisions of the Federal Securities Act of 1933, as amended, the Securities and Exchange Commission believes that indemnification for liabilities arising under Act of 1934, as amended, the federal securities laws is against public policy and isDGCL, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)or any other applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the Board has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 5 contracts
Sources: Indemnification Agreement (Actinium Pharmaceuticals, Inc.), Indemnification Agreement (Actinium Pharmaceuticals, Inc.), Indemnification Agreement (Actinium Pharmaceuticals, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, non-appealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of AgentIndemnitee’s conduct that is established by a final final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent Indemnitee under (i) a valid and collectible insurance policy, including under any policy of insurance purchased and maintained on Indemnitee’s behalf by the Corporation or (ii) under a valid and enforceable indemnity clause, bylaw bylaw, or agreement, except including, but not limited to, an indemnity clause, bylaw, or agreement relating to another corporation, partnership, joint venture, trust, or other enterprise for which Indemnitee is or was serving as a director or officer at the request of the Corporation; provided, that indemnity pursuant to Section 2 hereof shall be paid by the Corporation in respect of any excess beyond payment actually received by Indemnitee under such insuranceinsurance policy, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (andcontrary to law, in this respecteither as a matter of public policy, both or under the Corporation and Agent have been advised that provisions of the Federal Securities Act of 1933, as amended, the Securities and Exchange Commission believes that indemnification for liabilities arising under Act of 1934, as amended, the federal securities laws is against public policy and isNRS, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)or any other applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the Board has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeNRS, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 5 contracts
Sources: Indemnification Agreement (Relmada Therapeutics, Inc.), Indemnification Agreement (Relmada Therapeutics, Inc.), Indemnification Agreement (Relmada Therapeutics, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of AgentIndemnitee’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on On account of Agentof, or attributable to, Indemnitee’s conduct that is established by a final judgment as constituting constituted a breach of AgentIndemnitee’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitledCorporation;
(d) for For which full payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if The payment of which by the Corporation under this Agreement is not permitted by applicable law;
(f) If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws; or
(fg) in In connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 8 hereof.
Appears in 4 contracts
Sources: Employment Agreement (Commerce Energy Group, Inc.), Employment Agreement (Commerce Energy Group, Inc.), Indemnification Agreement (Commerce Energy Group, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of AgentIndemnitee’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on On account of Agentof, or attributable to, Indemnitee’s conduct that is established by a final judgment as constituting constituted a breach of AgentIndemnitee’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(d) for For which payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if The payment of which by the Corporation under this Agreement is not permitted by applicable law;
(f) If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws; or
(fg) in In connection with any proceeding proceeding, (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding proceeding, was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 8 hereof.
Appears in 4 contracts
Sources: Employment Agreement (Commerce Energy Group Inc), Employment Agreement (Commerce Energy Group Inc), Indemnification Agreement (Commerce Energy Group Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of AgentIndemnitee’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on On account of Agentof, or attributable to, Indemnitee’s conduct that is established by a final judgment as constituting constituted a breach of AgentIndemnitee’s duty of loyalty to the Corporation, a breach of Indemnitee’s duties of professional responsibility to the Corporation by accepting any subsequent employment as an attorney for any person, firm or resulting entity that is adverse to the Corporation, as this term is used in the rules of professional conduct governing attorneys licensed to practice in California, unless the Corporation has consented to such employment in advance, or resulted in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(d) for For which payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if The payment of which by the Corporation under this Agreement is not permitted by applicable law;
(f) If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws; or
(fg) in In connection with any proceeding proceeding, (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding proceeding, was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 8 hereof.
Appears in 4 contracts
Sources: Indemnification Agreement (Commerce Energy Group, Inc.), Indemnification Agreement (Commerce Energy Group, Inc.), Indemnification Agreement (Commerce Energy Group, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 4 contracts
Sources: Indemnity Agreement (Metabasis Therapeutics Inc), Indemnification Agreement (Senomyx Inc), Indemnification Agreement (Displaytech Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 4 contracts
Sources: Indemnification Agreement (Great American Group, Inc.), Indemnification Agreement (Nanosphere Inc), Indemnification Agreement (Masimo Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof Sections 1 and 2 of this Agreement shall be paid by the CorporationCompany to the extent that:
(a) on account payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claim claims of Indemnitee under such insurance policy or policies to the extent of the amount Indemnitee is paid by the Company;
(b) Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(c) final judgment is rendered against Agent solely Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes Section 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Act”), or other similar provisions of any federal, state or local statutory law;
(be) on account of AgentIndemnitee’s conduct that giving rise to the claim for indemnification is established finally adjudged by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account court of Agent’s conduct that is established by a final judgment as constituting competent jurisdiction to have been a breach of Agent’s fiduciary duty which involved intentional misconduct, fraud or a knowing violation of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)law; orand/or
(f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other proceeding (which is initiated or part thereof) initiated maintained by Agentor on behalf of Indemnitee, or any suit or other proceeding by Agent Indemnitee against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by Nevada law, ; (ii) the suit or other proceeding was expressly authorized by an official act of the Board of Directors of the Corporation, Company or (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofNevada law.
Appears in 3 contracts
Sources: Indemnification Agreement (Turtle Beach Corp), Indemnification Agreement (Parametric Sound Corp), Indemnification Agreement (Parametric Sound Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.such
Appears in 3 contracts
Sources: Indemnification Agreement (Mercata Inc), Indemnification Agreement (Anadys Pharmaceuticals Inc), Indemnification Agreement (Ixys Corp /De/)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCompany for any of the following:
(ai) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof or pursuant to any Directors' and Officers' Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any claim Proceeding in which judgment is rendered against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(biv) on account of Agent’s conduct any Proceeding to the extent that Indemnitee is established a plaintiff, a counter-complainant or a cross-complainant therein (other than a Proceeding referred to in Section 8 hereof) unless such Proceeding was authorized in the specific case by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconductaction of the Board of Directors;
(cv) on account of Agent’s Indemnitee's conduct that which is established the subject of any Proceeding described in Section 7(c)(ii) hereof; or
(vi) if a final decision by a final judgment as constituting a breach of Agent’s duty of loyalty to Court having jurisdiction in the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under matter shall determine that such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company in the performance of Indemnitee's duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) of amounts paid in settling or otherwise disposing of a pending action without Court approval; or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification of expenses incurred in defending a pending action which is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, settled or otherwise disposed of without court approval.
(iv) on account of Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(v) on account of acts or omissions that Indemnitee believes to be contrary to the proceeding is initiated pursuant best interests of the Company or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(vi) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(vii) on account of acts or omissions that show a reckless disregard for Indemnitee's duty to the Company or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing such Indemnitee's duties, of a risk of serious injury to the Company or its shareholders;
(viii) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee's duty to the Company or its shareholders;
(ix) to the extent prohibited by Section 9 hereof.310 of the California Corporations Code, "Contracts In Which Director Has Material Financial Interest; Validity," or;
(x) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several
Appears in 3 contracts
Sources: Indemnification Agreement (Kinzan Inc), Indemnification Agreement (Drugabuse Sciences Inc), Indemnification Agreement (Simple Technology Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, non-appealable judgment of a court of competent jurisdiction finds Agent to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of Agent’s conduct that is established by a final final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment actually received by Agent under such insurance, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)prohibited by applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the Board has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 3 contracts
Sources: Director Indemnification Agreement (Sg Blocks, Inc.), Director Indemnification Agreement (Microlin Bio, Inc.), Officer Indemnification Agreement (Microlin Bio, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Director is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect of remuneration paid to Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any claim action, suit or proceeding in which judgment is rendered against Agent solely Director for an accounting of profits made from the purchase or sale by Agent Director of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bd) on account of Agent’s Director's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(ce) on account of Agent’s Director's conduct that which is established by a final judgment as constituting a breach the subject of Agent’s duty of loyalty to the Corporation an action, suit or resulting proceeding described in any personal profit or advantage to which Agent was not legally entitledSection 7(c)(ii) hereof;
(df) for which payment is actually made on account of or arising in response to Agent under a valid and collectible insurance policy any action, suit or under a valid and enforceable indemnity clauseproceeding (other than an action, bylaw suit or agreementproceeding referred to in Section 8(b) hereof) initiated by Director or any of Director's affiliates against Corporation or any officer, except director or stockholder of Corporation unless such action, suit or proceeding was authorized in respect the specific case by action of any excess beyond payment under such insurance, clause, bylaw or agreementthe Board of Directors of Corporation;
(eg) on account of any action, suit or proceeding to the extent that Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action, suit or proceeding permitted by Section 3(f) hereof); or
(h) if a final decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Corporation and Agent Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 3 contracts
Sources: Series F Preferred Stock Purchase Agreement (Digirad Corp), Indemnification Agreement (Triangle Pharmaceuticals Inc), Indemnification Agreement (Rhythms Net Connections Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCompany:
(a) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Officer is indemnified pursuant to Section 1 hereof or pursuant to any directors and officers liability insurance purchased and maintained by the Company;
(b) in respect to remuneration paid to Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any claim suit in which judgment is rendered against Agent solely Officer for an accounting of profits profits, made from the purchase or sale by Agent Officer of securities of the Corporation Company, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bd) on account of Agent’s Officer's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(ce) on account of Agent’s Officer's conduct that which is established by a final judgment as constituting a breach the subject of Agent’s duty of loyalty to the Corporation an action, suit or resulting proceeding described in any personal profit or advantage to which Agent was not legally entitledSection 7(c)(ii) hereof;
(df) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect on account of any excess beyond payment under action, claim or proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by the Officer unless such insuranceaction, clause, bylaw claim or agreement;proceeding was authorized in the specific case by action of the Board of Directors; and
(eg) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Officer have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Officer's Indemnification Agreement (Artistdirect Inc), Officer's Indemnification Agreement (Netzero Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Acadia Pharmaceuticals Inc), Indemnification Agreement (Dot Hill Systems Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CorporationCompany:
(a) on On account of any claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (as defined below) (“Section 16(b)”), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b), Covered Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Covered Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Covered Agent for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Covered Agent ultimately establishes in any Proceeding that no recovery of such profits from Covered Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Covered Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(ec) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)applicable law; or
(fd) in connection with any proceeding Proceeding (or part thereof) initiated by Covered Agent, or any proceeding Proceeding by Covered Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 hereof, or (v) the Proceeding initiated by Covered Agent is a cross-claim or counter-claim.
Appears in 2 contracts
Sources: Indemnification Agreement (Ddi Corp), Indemnification Agreement (SRS Labs Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of Agent’s Indemnitee's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on On account of Agent’s of, or attributable to, Indemnitee's conduct that is established by a final judgment as constituting constituted a breach of Agent’s Indemnitee's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(d) for For which payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if The payment of which by the Corporation under this Agreement is not permitted by applicable law;
(f) If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws; or
(fg) in In connection with any proceeding proceeding, (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding proceeding, was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 8 hereof.
Appears in 2 contracts
Sources: Confidential Settlement Agreement (Commerce Energy Group Inc), Indemnification Agreement (Commerce Energy Group Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, non-appealable judgment of a court of competent jurisdiction finds Agent to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of Agent’s conduct that is established by a final final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment actually received by Agent under such insurance, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)prohibited by applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the board of directors of the Corporation has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Timios National Corp), Indemnification Agreement (Intercept Pharmaceuticals Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationNF:
(a) on account of any claim against Agent Director solely for an accounting of profits made from the purchase or sale by Agent Director of securities of the Corporation NF pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of AgentDirector’s conduct that is established by a final judgment as knowingly negligent, fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of AgentDirector’s conduct that is established by a final judgment as constituting a breach of AgentDirector’s duty of loyalty to the Corporation NF, or resulting which results in any personal profit or advantage to which Agent Director was not legally entitled;
(d) for which payment is actually made to Agent Director under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation NF and Agent Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentDirector, or any proceeding by Agent Director against the Corporation NF or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationNF, (iii) such indemnification is provided by the CorporationNF, in its sole discretion, pursuant to the powers vested in the Corporation NF under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Retainer Agreement (NF Energy Saving CORP of America), Retainer Agreement (NF Energy Saving CORP of America)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Sangstat Medical Corp), Indemnification Agreement (Openwave Systems Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim or Proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, nonappealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of AgentIndemnitee’s conduct that is established by a final final, nonappealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent Indemnitee under (i) a valid and collectible insurance policy, including under any policy of insurance purchased and maintained on Indemnitee’s behalf by the Corporation or (ii) under a valid and enforceable indemnity clause, bylaw bylaw, or agreement, except including, but not limited to, an indemnity clause, bylaw, or agreement relating to another corporation, partnership, joint venture, trust, or other enterprise for which Indemnitee is or was serving as a director or officer at the request of the Corporation; provided, that indemnity pursuant to Section 2 hereof shall be paid by the Corporation in respect of any excess beyond payment actually received by Indemnitee under such insuranceinsurance policy, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (andcontrary to law, in this respecteither as a matter of public policy, both or under the Corporation and Agent have been advised that provisions of the Federal Securities Act of 1933, as amended, the Securities and Exchange Commission believes that indemnification for liabilities arising under Act of 1934, as amended, the federal securities laws is against public policy and isDGCL, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)or any other applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Corporation has joined in the Board of Directors of the CorporationProceeding (or relevant part thereof), (iii) the Board has consented to the initiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Actinium Pharmaceuticals, Inc.), Indemnification Agreement (Actinium Pharmaceuticals, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(aA) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bB) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(cC) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(dD) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(eE) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fF) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Invision Technologies Inc), Indemnification Agreement (Dendreon Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage advan tage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication);
(f) if indemnification is not authorized in the specific case upon a determination that indemnification is proper in the circumstances because the Agent has met the standard of conduct required by the Code, as applicable, which determination shall be made by a majority of directors who are not party to the action or a committee designated by such directors, independent legal counsel or the stockholders; or
(fg) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly ex pressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Tumbleweed Communications Corp), Indemnification & Liability (Tumbleweed Software Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall Paragraph 2.2 may be paid by the CorporationCompany:
(a) on account of any claim if indemnity is not lawful (and, in this respect, both the Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication);
(b) if judgment is rendered against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of if Agent’s conduct that is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful or intentional misconduct;
(d) if Agent’s conduct is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(de) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, or (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofCompany.
Appears in 2 contracts
Sources: Indemnification Agreement (Applied Optoelectronics, Inc.), Indemnification Agreement (Applied Optoelectronics, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof Sections 1 and 2 of this Agreement shall be paid by the CorporationCompany to the extent that:
(a) on account payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claim claims of Indemnitee under such insurance policy or policies to the extent of the amount Indemnitee is paid by the Company;
(b) Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(c) final judgment is rendered against Agent solely Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes § 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Act”), or other similar provisions of any federal, state or local statutory law;
(be) on account of AgentIndemnitee’s conduct that giving rise to the claim for indemnification is established finally adjudged by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account court of Agent’s conduct that is established by a final judgment as constituting competent jurisdiction to have been a breach of Agent’s fiduciary duty which involved intentional misconduct, fraud or a knowing violation of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)law; orand/or
(f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other proceeding (which is initiated or part thereof) initiated maintained by Agentor on behalf of Indemnitee, or any suit or other proceeding by Agent Indemnitee against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by Nevada law, ; (ii) the suit or other proceeding was expressly authorized by an official act of the Board of Directors of the Corporation, Company or (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofNevada law.
Appears in 2 contracts
Sources: Indemnification Agreement (Davi Luxury Brand Group, Inc.), Indemnification Agreement (EnerJex Resources, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting in resulted in, any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and the Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to the provisions of Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Optionable Inc), Indemnification Agreement (Optionable Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which Officer is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect of remuneration paid to Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any claim action, suit or proceeding in which judgment is rendered against Agent solely Officer for an accounting of profits made from the purchase or sale by Agent Officer of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bd) on account of Agent’s Officer's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(ce) on account of Agent’s Officer's conduct that which is established by a final judgment as constituting a breach the subject of Agent’s duty of loyalty to the Corporation an action, suit or resulting proceeding described in any personal profit or advantage to which Agent was not legally entitledSection 7(c)(ii) hereof;
(df) for which payment is actually made on account of or arising in response to Agent under a valid and collectible insurance policy any action, suit or under a valid and enforceable indemnity clauseproceeding (other than an action, bylaw suit or agreementproceeding referred to in Section 8(b) hereof) initiated by Officer or any of Officer's affiliates against Corporation or any officer, except director or stockholder of Corporation unless such action, suit or proceeding was authorized in respect the specific case by action of any excess beyond payment under such insurance, clause, bylaw or agreementthe Board of Directors of Corporation;
(eg) on account of any action, suit or proceeding to the extent that Officer is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action, suit or proceeding permitted by Section 3(f) hereof); or
(h) if a final decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Corporation and Agent Officer have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 2 contracts
Sources: Indemnification Agreement (Triangle Pharmaceuticals Inc), Indemnification Agreement (Rhythms Net Connections Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(ai) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(bii) on account of Agent’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(ciii) on account of Agent’s conduct that is established by a final judgment as constituting constituted a breach of Agent’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(div) for which payment is actually has been made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(ev) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fvi) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
(b) Within thirty (30) days of receipt of a notice pursuant to Section 7, the Corporation (or the Independent Legal Counsel, if applicable) shall make an initial good faith determination of Agent’s entitlement to indemnification pursuant to this Agreement and shall notify Agent (and the Corporation, if Independent Legal Counsel is making such determination) promptly of such
Appears in 1 contract
Limitations on Additional Indemnity. No To the extent that any of the matters set forth in subsections (a) through (l) of this Section 3 are successfully established by the Corporation as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 3 2 hereof shall will be paid payable by the Corporation:
(a) a. on account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) b. on account of Agent’s Indemnitee's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconductfrom which Indemnitee derived an improper personal benefit;
(c) c. on account of Agent’s Indemnitee's conduct that is established by he believed to be contrary to the best interests of the Corporation or its shareholders or that involved the absence of good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted intentional misconduct or a final judgment as constituting knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a breach of Agent’s reckless disregard for the Indemnitee's duty of loyalty to the Corporation or resulting its shareholders in any personal profit circumstances in which Indemnitee was aware, or advantage should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to which Agent was not legally entitledthe Corporation or its shareholders;
(d) f. on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of the Indemnitee's duty to the Corporation or its shareholders;
g. on account of Indemnitee's conduct which constituted a violation of the Indemnitee's duties under Sections 310 or 316 of the Code;
h. for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) i. if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(f) j. in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, executive officers, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof;
k. with respect to any action by or in the right of the Corporation:
i. if the Indemnitee is adjudged to be liable to the Corporation in performance of the Indemnitee's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses, and then only to the extent that the court shall determine;
ii. for expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a pending action without court approval; and
l. to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Corporation prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee has been successful on the merits or unless the indemnification has been approved by the shareholders of the Corporation in accordance with Section 153 of the Code (with the shares of the Indemnitee not being entitled to vote thereon).
Appears in 1 contract
Sources: Indemnification Agreement (Silicon Storage Technology Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.other
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely Director for an accounting of profits made from the purchase or sale by Agent Director of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s Director's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s Director's conduct that is established by a final judgment as constituting constituted a breach of Agent’s Director's duty of loyalty to the Corporation or resulting in resulted in, any personal profit or advantage to which Agent Director was not legally entitled;
(d) for which payment is actually made to Agent Director under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent the Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentDirector, or any proceeding by Agent Director against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Codecode, or (iv) the proceeding is initiated pursuant to the Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim or proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale (or sale or purchase) by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto Act, or similar provisions of any federal, state or local statutory law, provided, however, if and when Indemnitee ultimately establishes in any such proceeding that no recovery of profits from Indemnitee is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 6(a), indemnification pursuant to this Agreement shall then be permitted;
(b) on account of AgentIndemnitee’s conduct that is established by a final judgment as knowingly fraudulent judicial decision from which there is no further right to appeal (hereinafter, a “Final Adjudication”) was committed in bad faith or deliberately dishonest or that constituted willful misconductwas the result of active and deliberate dishonesty;
(c) on account of AgentIndemnitee’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or Final Adjudication resulting in any the receipt of an improper personal profit benefit in the form of money, property or advantage to which Agent was not legally entitledservices;
(d) where Indemnitee’s conduct is the subject of a criminal proceeding in which it is established by a Final Adjudication that Indemnitee had reasonable cause to believe that the act or omission was unlawful;
(e) for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation Company or its directors, officers, employees or other agentsIndemnitees, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeMGCL, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Hercules Technology Growth Capital Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
: (a) on account of any claim against Agent solely (i) for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
law or (ii) pursuant to Section 304 or 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any rule or regulation promulgated pursuant thereto; (b) on account of Agent’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
; (c) on account of Agent’s conduct that is established by a final judgment as constituting constituted a breach of Agent’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
; (d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
; (e) if if, and to the extent, that a court of competent jurisdiction renders a final, unappealable decision that such indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission (“SEC”) believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
or (f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state state, or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as is knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as is constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw bylaw, or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw bylaw, or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees employees, or other agents, unless (iI) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDelaware Law, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No Notwithstanding any other provision herein to the contrary, no indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim proceeding with respect to which final judgment is rendered against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(ec) if indemnification is not lawful (and, in this respect, both the Corporation and the Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fd) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) a. on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) b. on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) c. on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) d. for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) e. if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) f. in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, Corporation or (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.the
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on On account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on On account of AgentIndemnitee’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest dishonest, or that constituted willful misconduct;
(c) on account Unless Indemnitee (i) acted in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation and, (ii) with respect to any criminal action or resulting in any personal profit proceeding, had no reasonable cause to believe that his or advantage to which Agent her conduct was not legally entitled;unlawful
(d) for For which payment is has actually been made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if The payment of which by the Corporation under this Agreement is not permitted by applicable law; or
(f) If indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection or is prohibited by any applicable state securities laws with respect to any proceeding (violation of applicable federal or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofstate securities laws.
Appears in 1 contract
Sources: Indemnification Agreement (Environmental Power Corp)
Limitations on Additional Indemnity. No indemnity Indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is Is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance Insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in In connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Employment Agreement (Verenium Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent Director solely for an accounting of profits made from the purchase or sale by Agent Director of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of AgentDirector’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of AgentDirector’s conduct that is established by a final judgment as constituting a breach of AgentDirector’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent Director was not legally entitled;
(d) for which payment is actually made to Agent Director under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentDirector, or any proceeding by Agent Director against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeAct, or (iv) the proceeding is initiated pursuant to Section 9 hereofhereof 5. Continuation of Indemnity. All agreements and obligations of the Company contained herein shall continue during the period Director is a director (or officer, employee or other agent of the Company at the request of the Company) and shall continue thereafter so long as Director shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that Director was serving in the capacity referred to herein.
Appears in 1 contract
Sources: Securities Purchase Agreement (Servicesource International LLC)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.proceeding
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationFund:
(a) on account of any claim or Proceeding against Agent solely Trustee for an accounting of profits made from the purchase or sale by Agent Trustee of securities of the Corporation Fund pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory lawlaw if the final, non-appealable judgment of a court of competent jurisdiction finds Trustee to be liable for disgorgement under Section 16(b) of the Exchange Act;
(b) on account of AgentTrustee’s conduct that is established by a final final, non-appealable judgment of a court of competent jurisdiction as knowingly fraudulent willful misfeasance, bad faith or deliberately dishonest gross negligence in the performance of his or that constituted willful misconducther duties or by reason of his or her reckless disregard of his or her obligations and duties in the conduct of office (“Disabling Conduct”);
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent Trustee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment actually received by Trustee under such insurance, clause, bylaw or agreement;
(ed) if and to the extent indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)prohibited by applicable law; or
(fe) in connection with any proceeding Proceeding (or part thereof) initiated by AgentTrustee, or any proceeding by Agent against the Corporation Fund or its directorstrustees, officers, employees employees, investment advisor or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by Fund has joined in the Proceeding (or relevant part thereof), (iii) the Board of Directors Trustees has consented to the initiation of the Corporationsuch Proceeding, (iiiiv) such indemnification is provided by the CorporationFund, in its sole discretion, pursuant to the powers vested in the Corporation Fund under the CodeDSTA, or (ivv) the proceeding Proceeding (or relevant part thereof) is initiated pursuant to Section 9 12 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.indemnification
Appears in 1 contract
Sources: Indemnification Agreement (Peninsula Pharmaceuticals Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationValence:
(a) i. on account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Valence pursuant to the provisions of Section 16(b) of the United States Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) ii. on account of Agent’s Indemnitee's conduct that is established by a final judgment as knowingly was fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) iii. on account of Agent’s Indemnitee's conduct that is established by a final judgment as constituting constituted a breach of Agent’s Indemnitee's duty of loyalty to the Corporation Valence or resulting resulted in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(d) iv. for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) v. if indemnification is not lawful (and, in this respect, both the Corporation Valence and Agent Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) vi. in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation Valence or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationValence, (iii) or such indemnification is provided by the CorporationValence, in its sole discretion, pursuant to the powers vested in the Corporation Valence under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofAct.
Appears in 1 contract
Sources: Indemnification & Liability (Valence Technology Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent Individual solely for an accounting of profits made from the purchase or sale by Agent Individual of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(b) on account of AgentIndividual’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of AgentIndividual’s conduct that is established by a final judgment as constituting a breach of AgentIndividual’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent Individual was not legally entitled;
(d) for which payment is actually made to Agent Individual under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Individual have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentIndividual, or any proceeding by Agent Individual against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CorporationCompany:
(a) on On account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b), Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Agent ultimately establishes in any Proceeding that no recovery of such profits from Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful; or
(f) in connection with any proceeding Proceeding (or part thereof) initiated by Agent, or any proceeding Proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 hereof, and (v) the Proceeding initiated by Agent is a cross-claim or counter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Divx Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by the Corporation;
b. in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
c. on account of any claim suit in which judgment is rendered against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;,
(b) d. on account of Agent’s Indemnitee's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(c) e. on account of Agent’s Indemnitee's conduct that which is established the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
f. on account of any action, claim or proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by the Indemnitee unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors; and
g. if a final decision by a final judgment as constituting a breach of Agent’s duty of loyalty to Court having jurisdiction in the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under matter shall determine that such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(aA) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bB) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(cC) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(dD) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(eE) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fF) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.powers
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(ai) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(bii) on account of Agent’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(ciii) on account of Agent’s conduct that is established by a final judgment as constituting constituted a breach of Agent’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(div) for which payment is actually has been made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(ev) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(fvi) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
(b) Within thirty (30) days of receipt of a notice pursuant to Section 7, the Corporation (or the Independent Legal Counsel, if applicable) shall make an initial good faith determination of Agent’s entitlement to indemnification pursuant to this Agreement and shall notify Agent (and the Corporation, if Independent Legal Counsel is making such determination) promptly of such determination. If at any time thereafter the Corporation (or the Independent Legal Counsel, as applicable) in good faith determines that any indemnification requested pursuant to this Agreement is prohibited pursuant to Section 4(a), the Corporation shall promptly provide notice of such determination to Agent (and the Corporation, if applicable). Any determination by the Corporation pursuant to this
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which Agent is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to remuneration paid to Agent if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bd) on account of Agent’s 's conduct that is established by a final judgment as to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(ce) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(df) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(eg) on account of any action, claim or proceeding initiated by Agent unless (i) such action, claim or proceeding was authorized in the specific case by action of the Board of Directors, (ii) such indemnification is expressly required to be made by law, (iii) such indemnification is provided by Corporation, in its sole discretion, pursuant to the powers vested in Corporation under the DGCL, or (iv) the proceeding is initiated pursuant to Section 9(b) hereof; or
(h) if such indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to ----------------------------------- Section 3 4 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw by-law or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw by-law or agreement;
(ec) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(fd) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof;
(e) on account of Agent's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(f) on account of Agent's acts or omissions that Agent believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of the Agent;
(g) in respect of any action brought by or in the right of the Corporation for breach of Agent's duties to the Corporation and its shareholders:
(i) on account of any transaction from which Agent derived an improper personal benefit.
(ii) on account of Agent's acts or omissions that show a reckless disregard for the Agent's duty to the Corporation or its shareholders in circumstances in which Agent was aware, or should have been aware, in the ordinary course of performing Agent's duties, of a risk of serious injury to the Corporation or its shareholders.
(iii) on account of Agent's acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Agent's duty to the Corporation or its shareholders.
(iv) on account of any liability of Agent under Section 310 of the Code.
(v) on account of any liability of Agent under Section 316 of the Code.
(vi) on account of any act or omission of Agent occurring prior to the date when a provision in the Corporation's Articles of Incorporation eliminating or limiting the personal liability of the Corporation's directors for monetary damages in actions brought by or in the right of the Corporation, as authorized by Section 204(a)(10) of the Code, first became effective;
(h) in respect of any action by or in the right of the Corporation to procure a judgment in its favor:
(i) in respect of any claim, issue or matter as to which Agent shall have been adjudged to be liable to the Corporation in the performance of Agent's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent the court shall determine.
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval.
(iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
(i) except as provided in subdivision (d) or paragraph (4) of subdivision (e) of Section 317 of the Code, in any circumstance where it appears:
(i) that it would be inconsistent with a provision of the Corporation's Articles of Incorporation or Bylaws, a resolution of the Corporation's shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification.
(ii) that it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
Appears in 1 contract
Limitations on Additional Indemnity. No To the extent that any of the matters set forth in subsections (a) through (k)) of this Section 3 are successfully established by the Corporation as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 3 2 hereof shall will be paid payable by the Corporation:
(a) a. on account of any claim against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) b. on account of Agent’s Indemnitee's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconductfrom which Indemnitee derived an improper personal benefit;
(c) c. on account of Agent’s Indemnitee's conduct that is established by he believed to be contrary to the best interests of the Corporation or its shareholders or that involved the absence of good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted intentional misconduct or a final judgment as constituting knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a breach of Agent’s reckless disregard for the Indemnitee's duty of loyalty to the Corporation or resulting its shareholders in any personal profit circumstances in which Indemnitee was aware, or advantage should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to which Agent was not legally entitledthe Corporation or its shareholders;
(d) f. on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of Indemnitee's duty to the Corporation or its shareholders;
g. on account of Indemnitee's conduct which constituted a violation of the Indemnitee's duties under Sections 310 or 316 of the Code;
h. for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) i. if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(f) j. in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, executive officers, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof;
k. with respect to any action by or in the right of the Corporation:
i. if the Indemnitee is adjudged to be liable to the Corporation in performance of the Indemnitee's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses, and then only to the extent that the court shall determine;
ii. for expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a pending action without court approval; and
l. to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Corporation prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee, has been successful on the merits or unless the indemnification has been approved by the shareholders of the Corporation in accordance with Section 153 of the Code (with the shares of the Indemnitee not being entitled to vote thereon).
Appears in 1 contract
Sources: Indemnification Agreement (Cypros Pharmaceutical Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCompany:
(a) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Director is indemnified pursuant to Section 1 hereof or pursuant to any directors and officers liability insurance purchased and maintained by the Company;
(b) in respect to remuneration paid to Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any claim suit in which judgment is rendered against Agent solely Director for an accounting of profits profits, made from the purchase or sale by Agent Director of securities of the Corporation Company, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(bd) on account of Agent’s Director's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(ce) on account of Agent’s Director's conduct that which is established by a final judgment as constituting a breach the subject of Agent’s duty of loyalty to the Corporation an action, suit or resulting proceeding described in any personal profit or advantage to which Agent was not legally entitledSection 7(c)(ii) hereof;
(df) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect on account of any excess beyond payment under action, claim or proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by the Director unless such insuranceaction, clause, bylaw claim or agreement;proceeding was authorized in the specific case by action of the Board of Directors; and
(eg) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Corporation Company and Agent Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof Sections 1 and 2 of this Agreement shall be paid by the CorporationCompany to the extent that:
(a) on account 3.1 Payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claim claims of Indemnitee under such insurance policy or policies to the extent of the amount Indemnitee is paid by the Company;
3.2 Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
3.3 Final judgment is rendered against Agent solely Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes § 78.300, as amended;
3.4 Final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Act”), or other similar provisions of any federal, state or local statutory law;
(b) on account of Agent3.5 Indemnitee’s conduct that giving rise to the claim for indemnification is established finally adjudged by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account court of Agent’s conduct that is established by a final judgment as constituting competent jurisdiction to have been a breach of Agent’s fiduciary duty which involved intentional misconduct, fraud or a knowing violation of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;law; and/or
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, 3.6 Except as otherwise provided in this respectAgreement, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with all or any part of a suit or other proceeding (which is initiated or part thereof) initiated maintained by Agentor on behalf of Indemnitee, or any suit or other proceeding by Agent Indemnitee against the Corporation Company or its directors, officers, employees or other agents, unless (ia) such indemnification is expressly required to be made by Nevada law, ; (iib) the suit or other proceeding was expressly authorized by an official act of the Board of Directors of the Corporation, Company or (iiic) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofNevada law.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is indemnified pursuant to Section I hereof or pursuant to any D & O Insurance purchased and maintained by the Corporation;
b. in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
c. on account of any claim suit in which judgment is rendered against Agent solely Indemnitee for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) d. on account of Agent’s Indemnitee's conduct that which is established by a final judgment as finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or that constituted to constitute willful misconduct;
(c) e. on account of Agent’s Indemnitee's conduct that which is established the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
f. on account of any action, claim or proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by the Indemnitee unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
g. if a final decision by a final judgment as constituting a breach of Agent’s duty of loyalty to Court having jurisdiction in the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under matter shall determine that such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnity Agreement (Perficient Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCorporation for any of the following:
(ai) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Director is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of Director's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(iv) on account of any action, claim against Agent solely for an accounting of profits made from or proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by Director unless such action, claim or proceeding was authorized in the purchase or sale specific case by Agent of securities action of the Corporation pursuant to the provisions Board of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory lawDirectors;
(bv) on account of Agent’s Director's conduct that which is established the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vi) if a final decision by a final judgment as knowingly fraudulent or deliberately dishonest or Court having jurisdiction in the matter shall determine that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Director have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Corporation shall be paid by the Corporation for any of the following:
(i) on account of acts or omissions that Director believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Director;
(ii) with respect to any transaction from which Director derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Director's duty to the Corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director's duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the California Corporations Code, "Contracts In Which Director Has Material Financial Interest";
(vi) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which Director shall have been adjudged to be liable to the Corporation in the performance of Director's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Director is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(viii) of amounts paid in settling or otherwise disposing of a pending action without court approval; or
(fix) of expenses incurred in connection with any proceeding (defending a pending action which is settled or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board otherwise disposed of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofwithout court approval.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.such
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section Sections 2 or 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of AgentIndemnitee’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(cb) on account of AgentIndemnitee’s conduct that is established by a final judgment as constituting a breach of Agent’s his duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent he was not legally entitled;
(dc) for which payment is actually fully made to Agent Indemnitee under a valid and collectible an insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreementanother indemnification provision;
(ed) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(fe) in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required by law to be made by lawmade, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof, or
(f) for any claim, issue or matter as to which Indemnitee is adjudged to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery or a judge of the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCorporation under this agreement:
(a) 4.1 on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) 4.2 on account of Agent’s conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) 4.3 on account of Agent’s conduct that is established by a final judgment as constituting constituted a breach of Agent’s duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage to which Agent was not legally entitled;
(d) 4.4 for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) 4.5 if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) 4.6 in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity or contribution pursuant to Section 3 5 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely the Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by Agent the Indemnitee of securities of the Corporation pursuant to within the provisions meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state statutory law or local statutory common law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) claims for which payment is actually made to Agent the Indemnitee under a valid and collectible corporate insurance policy or under a valid and enforceable indemnity clause, bylaw by-law or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw by-law or agreement;
(ec) if indemnification is not lawful (andlawful, as established in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted a final adjudication not subject to appropriate courts for adjudication); orfurther appeal;
(fd) in connection with any proceeding Proceeding (or part thereof) initiated by Agentthe Indemnitee, or any proceeding Proceeding by Agent the Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by applicable law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 10(d) hereof;
(e) on account of the Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, as established in a final adjudication not subject to further appeal;
(f) in accordance with Section 145 of the DGCL, if the Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, as established in a final adjudication not subject to further appeal, and, with respect to any criminal Proceeding, Indemnitee had reasonable cause to believe Indemnitee's conduct was unlawful (the termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that (i) Indemnitee did not act in good faith, (ii) Indemnitee did not act in a manner which Indemnitee reasonably believed to be in the best interests of the Corporation, or (iii) with respect to any criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful);
(g) in respect of any action brought by or in the right of the Corporation to procure a judgment in its favor for breach of the Indemnitee's duties to the Corporation and its shareholders, as established in a final adjudication not subject to further appeal:
(i) if the Indemnitee's acts or omissions have been based upon or attributable to Indemnitee's in fact having gained any personal profit or advantage to which Indemnitee was not legally entitled;
(ii) on account of the Indemnitee's acts or omissions that show a reckless disregard for the Indemnitee's duty to the Corporation or its shareholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing the Indemnitee's duties, of a risk of serious injury to the Corporation or its shareholders; or
(iii) on account of the Indemnitee's acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the Indemnitee's duty to the Corporation or its shareholders;
(h) in respect of any action by or in the right of the Corporation to procure a judgment in its favor, as established in a final adjudication not subject to further appeal:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Corporation in the performance of the Indemnitee's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent the court shall determine;
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval; and
(iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; and
(j) On account of the operation of a "clawback" policy adopted by the Board of Directors requiring the Corporation to recover amounts paid to an executive following a restatement of its financial statements.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CorporationCompany:
(a) on On account of any claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (“Section 16(b)”), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b), Covered Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Covered Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Covered Agent for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Covered Agent ultimately establishes in any Proceeding that no recovery of such profits from Covered Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on account of Covered Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Covered Agent’s conduct that is established by a final judgment as constituting a breach of Covered Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Covered Agent was not legally entitled;
(d) for which payment is actually made to Covered Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess Expenses beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful; or
(f) in connection with any proceeding Proceeding (or part thereof) initiated by Covered Agent, or any proceeding Proceeding by Covered Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 hereof, and (v) the Proceeding initiated by Covered Agent is a cross-claim or counter-claim.
Appears in 1 contract
Sources: Indemnity Agreement (Advanced Environmental Recycling Technologies Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) except as provided in Section 7, for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCorporation (the “Board”), (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for or which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof.; or
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.such
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the CorporationCompany:
(a) on On account of any claim against Agent Indemnitee solely for an accounting of profits made from the purchase or sale by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (“Exchange Act”), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on On account of Agentany reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a Proceeding to recover such compensation or profits prior to the final adjudication of that Proceeding;
(c) On account of Indemnitee’s conduct that is established by a final judgment judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(cd) on On account of AgentIndemnitee’s conduct that is established by a final judgment judgment, not subject to appeal, as constituting a breach of AgentIndemnitee’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(de) for For which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreementagreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee has no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company’s satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company;
(ef) if If indemnification is not lawful (andlawful, in this respect, both as established by the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted Company by a final judgment on such issue not subject to appropriate courts for adjudication)appeal; or
(fg) in In connection with any proceeding Proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding Proceeding by Agent Indemnitee against the Corporation Company or its an Affiliate or the directors, officers, employees or other agentsagents of the Company or an Affiliate, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Company’s Board of Directors of the Corporation(“Board”), (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 10 hereof, or (v) the Proceeding initiated by Indemnitee is a cross-claim or counter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.the
Appears in 1 contract
Sources: Indemnification Agreement (LXN Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof; or
(g) if indemnification is in violation of any undertaking appearing in and required by the rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Agent acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Corporation to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Agent’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Agent specifically agrees that any such undertaking shall supersede the provisions of this Agreement and to be bound by any such undertaking.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 2 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of AgentIndemnitee’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(cb) on account of AgentIndemnitee’s conduct that is established by a final judgment as constituting a breach of AgentIndemnitee’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent Indemnitee was not legally entitled;
(dc) for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(d) on account of any claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication);
(f) for any judgments, fines and amount paid in settlement in connection with any proceeding by or in the right of the Corporation, if Indemnitee does not meet the conditions of Sections 3(a) and (b) hereof; or
(fg) in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 8 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Aeolus Pharmaceuticals, Inc.)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 4 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw by-law or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw by-law or agreement;
(ec) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(fd) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof;
(e) on account of Agent’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(f) on account of Agent’s acts or omissions that Agent believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of the Agent;
(g) in respect of any action brought by or in the right of the Corporation for breach of Agent’s duties to the Corporation and its shareholders:
(i) on account of any transaction from which Agent derived an improper personal benefit.
(ii) on account of Agent’s acts or omissions that show a reckless disregard for the Agent’s duty to the Corporation or its shareholders in circumstances in which Agent was aware, or should have been aware, in the ordinary course of performing Agent’s duties, of a risk of serious injury to the Corporation or its shareholders.
(iii) on account of Agent’s acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Agent’s duty to the Corporation or its shareholders.
(iv) on account of any liability of Agent under Section 310 of the Code.
(v) on account of any liability of Agent under Section 316 of the Code.
(vi) on account of any act or omission of Agent occurring prior to the date when a provision in the Corporation’s Articles of Incorporation eliminating or limiting the personal liability of the Corporation’s directors for monetary damages in actions brought by or in the right of the Corporation; or
(h) in respect of any action by or in the right of the Corporation to procure a judgment in its favor:
(i) in respect of any claim, issue or matter as to which Agent shall have been adjudged to be liable to the Corporation in the performance of Agent’s duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent the court shall determine.
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval.
(iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Leapfrog Enterprises Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim or proceeding against Agent solely Indemnitee for an accounting of profits made from the purchase or sale (or sale or purchase) by Agent Indemnitee of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto Act, or similar provisions of any federal, state or local statutory law, provided, however, if and when Indemnitee ultimately establishes in any such proceeding that no recovery of profits from Indemnitee is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 6(a), indemnification pursuant to this Agreement shall then be permitted;
(b) on account of AgentIndemnitee’s conduct that is established by a final judgment as knowingly fraudulent judicial decision from which there is no further right to appeal (hereinafter, a “Final Adjudication”) was committed in bad faith or deliberately dishonest or that constituted willful misconductwas the result of active and deliberate dishonesty;
(c) on account of AgentIndemnitee’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or Final Adjudication resulting in any the receipt of an improper personal profit benefit in the form of money, property or advantage to which Agent was not legally entitledservices;
(d) where Indemnitee’s conduct is the subject of a criminal proceeding in which it is established by a Final Adjudication that Indemnitee had reasonable cause to believe that the act or omission was unlawful;
(e) for which payment is actually made to Agent Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by AgentIndemnitee, or any proceeding by Agent Indemnitee against the Corporation Company or its directors, officers, employees or other agentsIndemnitees, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeMGCL, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof; or
(g) where Indemnitee is liable to the Company or its stockholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Indemnitee’s office.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Legal/Contracts/Indemnity Agreements - InVision/Indemnity Agreement - ▇▇▇▇▇▇ proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Invision Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCorporation for any of the following:
(ai) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any claim against Agent solely for an accounting Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(biv) in connection with any action, claim or proceeding (or part thereof) initiated by Indemnitee, or any action, claim or proceeding by Indemnitee against the Corporation (other than as permitted by Section 8) or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors, or (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under Section 145;
(v) on account of Agent’s Director's conduct that which is established by the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vi) if a final judgment as knowingly fraudulent or deliberately dishonest or judicial decision having jurisdiction in the matter shall determine that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Corporation shall be paid by the Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee’s duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing an Agent’s duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee’s duty to the Corporation or its shareholders;
(v) in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(vi) of amounts paid in settling or otherwise disposing of a pending action without court approval; or
(fvii) of expenses incurred in connection with any proceeding (defending a pending action which is settled or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board otherwise disposed of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofwithout court approval.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.proceeding
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any foreign, federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CorporationCompany:
(a) on On account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b), Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Agent ultimately establishes in any Proceeding that no recovery of such profits from Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, insurance clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful; or
(f) in connection with any proceeding Proceeding (or part thereof) initiated by Agent, or any proceeding Proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 hereof, and (v) the Proceeding initiated by Agent is a cross-claim or counter-claim.
Appears in 1 contract
Sources: Indemnification Agreement (Raptor Pharmaceutical Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting constituted a breach of Agent’s 's duty of loyalty to the Corporation or resulting resulted in any personal profit or advantage advan tage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication);
(f) if indemnification is not authorized in the specific case upon a determination that indemnification is proper in the circumstances because the Agent has met the standard of conduct required by the Code, as applicable, which determination shall be made in accordance with the Code; or party to the action or a committee designated by such directors, independent legal counsel or the stockholders; or
(fg) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly ex pressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Tumbleweed Communications Corp)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Intarcia Therapeutics, Inc)
Limitations on Additional Indemnity. a. No indemnity pursuant to Section 3 2 hereof shall be paid by the CorporationCorporation for any of the following:
(ai) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which Indemnitee is indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(iv) on account of any action, claim against Agent solely for an accounting of profits made from or proceeding initiated by Indemnitee unless such action, claim or proceeding was authorized in the purchase or sale specific case by Agent of securities action of the Corporation pursuant to the provisions Board of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory lawDirectors;
(bv) on account of Agent’s Indemnitee's conduct that which is established the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vi) if a final decision by a final judgment as knowingly fraudulent or deliberately dishonest or Court having jurisdiction in the matter shall determine that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
b. In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Corporation shall be paid by the Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee's duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing such Indemnitee's duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee's duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the California Corporations Code, "Contracts In Which Indemnitee Has Material Financial Interest";
(vi) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation in the performance of Indemnitee's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(viii) of amounts paid in settling or otherwise disposing of a pending action without court approval; or
(fix) of expenses incurred in connection with any proceeding (defending a pending action which is settled or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board otherwise disposed of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereofwithout court approval.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the CorporationCompany:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the CorporationCompany, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 4 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw by-law or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw by-law or agreement;
(ec) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or;
(fd) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 10 hereof;
(e) on account of Agent's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(f) on account of Agent's acts or omissions that Agent believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of the Agent;
(g) in respect of any action brought by or in the right of the Corporation for breach of Agent's duties to the Corporation and its shareholders:
(i) on account of any transaction from which Agent derived an improper personal benefit.
(ii) on account of Agent's acts or omissions that show a reckless disregard for the Agent's duty to the Corporation or its shareholders in circumstances in which Agent was aware, or should have been aware, in the ordinary course of performing Agent's duties, of a risk of serious injury to the Corporation or its shareholders.
(iii) on account of Agent's acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Agent's duty to the Corporation or its shareholders.
(iv) on account of any liability of Agent under Section 310 of the Code.
(v) on account of any liability of Agent under Section 316 of the Code.
(vi) on account of any act or omission of Agent occurring prior to the date when a provision in the Corporation's Articles of Incorporation eliminating or limiting the personal liability of the Corporation's directors for monetary damages in actions brought by or in the right of the Corporation, as authorized by Section 204(a)(10) of the Code, first became effective;
(h) in respect of any action by or in the right of the Corporation to procure a judgment in its favor:
(i) in respect of any claim, issue or matter as to which Agent shall have been adjudged to be liable to the Corporation in the performance of Agent's duty to the Corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent the court shall determine.
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval.
(iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
(i) except as provided in subdivision (d) or paragraph (4) of subdivision (e) of Section 317 of the Code, in any circumstance where it appears:
(i) that it would be inconsistent with a provision of the Corporation's Articles of Incorporation or Bylaws, a resolution of the Corporation's shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification.
(ii) that it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s 's conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s 's conduct that is established by a final judgment as constituting a breach of Agent’s 's duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.powers
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim or proceeding against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law, provided, however, if and when Agent ultimately establishes in any such proceeding that no recovery of profits from Agent is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 4(a), indemnification pursuant to this Agreement shall then be permitted;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement, provided, that the foregoing shall not affect the rights of Agent or the Third Party Indemnitors set forth in Section 13(b) below;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board board of Directors directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the CodeDGCL, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Paratek Pharmaceuticals Inc)
Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 11 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CorporationCompany:
(a) on On account of any claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law; provided that with respect to a claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b), Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Agent ultimately establishes in any Proceeding that no recovery of such profits from Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation Company and Agent have been advised are aware that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding Proceeding (or part thereof) initiated by Agent, or any proceeding Proceeding by Agent against the Corporation Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding Proceeding was authorized by the Board of Directors of the CorporationBoard, (iii) such indemnification is provided by the CorporationCompany, in its sole discretion, pursuant to the powers vested in the Corporation Company under the CodeDGCL or any other applicable law, or (iv) the proceeding Proceeding is initiated pursuant to Section 9 hereof, and (v) the Proceeding initiated by Agent is a cross-claim or counter-claim.
Appears in 1 contract
Sources: Indemnification Agreement (Aeolus Pharmaceuticals, Inc.)