Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company: (i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct; (iv) on account of Indemnitee's conduct which is 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 Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and (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. (b) 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 of the following: (i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors. (ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Indemnification Agreement (Iasiaworks Inc), Indemnification Agreement (Iasia Works Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by Corporation for any of the Companyfollowing:
(i) to the extent the aggregate of losses to be indemnified exceeds the sum of (A) such losses for which the Director is indemnified pursuant to Section 1 hereof and (B) any settlement pursuant to any D & O Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee Director if it shall be determined by a final judgment without right of appeal, or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee Director for an accounting of profits made from the purchase or sale by Indemnitee Director of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of IndemniteeDirector's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation of an action, suit or proceeding described in Section 6(c)(ii) hereoflaw;
(v) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Director unless such action, claim or proceeding was authorized in by the specific case by action uninterested directors of the Board of Directors;Corporation; or
(vi) if a final decision without right of appeal by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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 Companylawful.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies by Indemnitee, acts or by a group omissions that Director believed or believes to be contrary to the best interests of which he was the Corporation or became a member consisting its shareholders or that involve the absence of two or more persons that had agreed (whether formally or informally and whether or not in writing) to act together for good faith on the purpose part of soliciting proxies, in opposition to any solicitation of proxies approved by the Board of Directors.Director;
(ii) Any activities by Indemnitee 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 duties 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 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 duties to the Corporation or its shareholders;
(v) to the extent prohibited by Section 144 of the Delaware general Corporation Law, entitled "Interested Directors; Quorum;"
(vi) in respect of any claim, issue or matter as to which Director shall have been adjudged to be liable to Corporation in the performance of Director's duties to 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 such court shall determine;
(vii) of amounts paid in settling or otherwise disposing of a breach pending action without court approval; and
(viii) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 2 contracts
Sources: Indemnification Agreement (Ants Software Inc), Indemnification Agreement (Ants Software Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 4 hereof shall be paid by the CompanyCorporation:
(ia) 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;
(iib) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiic) in regards to those Proceedings not by or in the right of Corporation, on account of Indemnitee's ’s conduct which is finally adjudged not in good faith and in a manner which Indemnitee did not reasonably believe to have been knowingly fraudulent be in, or deliberately dishonest or not opposed to, the best interest of Corporation and with respect to constitute willful misconductcriminal action, if Indemnitee had reasonable cause to believe Indemnitee’s conduct was unlawful;
(ivd) in regards to those Proceedings by or in the right of Corporation, on account of Indemnitee's ’s conduct which is not in good faith and in a manner which Indemnitee did not reasonably believe to be in, or not opposed to, the subject best interest of an actionCorporation, suit as well as when Indemnitee has been finally adjudged to be liable to Corporation in the performance of Indemnitee’s duty to Corporation unless and only to the extent that the court in which such Proceeding is or proceeding described was pending determines upon application that, in Section 6(c)(ii) hereofview of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Liabilities which the court deems proper;
(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;
(vie) if a final decision by a Court having jurisdiction in the matter shall determine determines that such indemnification is not lawful lawful;
(andf) for any Liabilities to Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement; or
(g) in this respect, both the Company and respect of any fines and/or penalties imposed upon Indemnitee have been advised that by 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); and
(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) in connection with any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) 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 enforcement action of the following:
(i) Any solicitation Commission, including any settlement of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directorssuch an action.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Indemnification Agreement (Lanvision Systems Inc), Indemnification Agreement (Streamline Health Solutions Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company Corporation pursuant to the provisions of 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;
(iiid) on account of Indemnitee's ’s conduct which that is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's ’s conduct which that is the subject of an action, suit or proceeding described in Section 6(c)(ii8(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b10(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
(vig) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Indemnification Agreement (Nu Skin Enterprises Inc), Indemnification Agreement (Nu Skin Enterprises Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for (i) an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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, (ii) any reimbursement of the Corporation by Indemnitee of any bonus or other incentive-based or equity-based compensation or out of any profits realized from the sale of securities, in each case as may be required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or pursuant to any compensation recovery policy of the Corporation that may be adopted in compliance with the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act of 2010;
(iiid) on account of Indemnitee's ’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's ’s conduct which is the subject of an action, suit or proceeding a Proceeding described in Section 6(c)(ii8(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b11(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
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Indemnity Agreement (Crossroads Systems Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCompany for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment 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 the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account prior to a Change of Indemnitee's conduct which is the subject of an actionControl, suit or proceeding described in Section 6(c)(ii) hereof;
(v) on account of any actionProceeding to the extent that the Indemnitee is a plaintiff, claim a counter-complainant or proceeding a cross-complainant therein (other than a proceeding referred an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in Section 7(bany Proceeding) hereof) initiated by the Indemnitee unless such action, claim or proceeding Proceeding was authorized in the specific case by action of the Board of Directors;; or
(viv) if a final decision judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the 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); and
(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.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company 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 of the following:
(i) Any solicitation in respect of proxies by any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is 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 proxiespending shall determine upon application that, in opposition view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to any solicitation of proxies approved by indemnity for expenses and then only to the Board of Directors.extent that the court shall determine;
(ii) Any activities by on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Companyderived an improper personal benefit.
Appears in 2 contracts
Sources: Indemnification Agreement (GigaCloud Technology Inc), Indemnification Agreement (GigaCloud Technology Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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;; or
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Indemnification Agreement (Endosonics Corp), Indemnification Agreement (Coldwater Creek Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 2 contracts
Sources: Separation Agreement (Active Power Inc), Indemnification Agreement (Crossroads Systems Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation for any of the following:
(i) to the extent an Indemnitee is indemnified pursuant to any D & O Insurance purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to an Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment is rendered against an Indemnitee for an accounting of profits made from the purchase or sale by such Indemnitee of securities of the Company Corporation 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of an Indemnitee's conduct which is the subject ’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of an action, suit or proceeding described in Section 6(c)(ii) hereoflaw;
(v) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(b) hereof) initiated by the an Indemnitee unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;; or
(vi) if a final decision by a Court having jurisdiction on account of an Indemnitee’s conduct which is the subject of an action, suit or proceeding described in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(viiSection 7(c)(ii) 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 Companyhereof.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, 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 with respect to any solicitation of proxies approved by the Board of Directors.transaction from which an Indemnitee derived an improper personal benefit;
(ii) Any activities on account of acts or omissions that show a reckless disregard for an Indemnitee’s duty to the Corporation or its stockholders in circumstances in which such Indemnitee was aware, or should have been aware, in the ordinary course of performing a director’s or an officer’s duties, of a risk of serious injury to the Corporation or its stockholders;
(iii) to indemnify any Indemnitee for any claims excluded under Section 145 of the Code if (i) he or she did not act in good faith or in a manner reasonably believed by such Indemnitee to be in or not opposed to the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, such Indemnitee had reasonable cause to believe his or her conduct was unlawful, or (iii) such Indemnitee shall have been adjudged to be liable to the Corporation unless and only to the extent the court in which such action was brought shall permit indemnification as provided in Section 145(b) of the Delaware General Corporation Law; or
(iv) in respect of any claim, issue or matter as to which an Indemnitee shall have been adjudged to be liable to the Corporation in the performance of such Indemnitee’s duty to the Corporation and its stockholders, unless and only to the extent that constitute a breach the court in which such proceeding is or was pending shall determine upon application that, in view of or default under any agreement between all the circumstances of the case, such Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the Companyextent that the court shall determine.
Appears in 1 contract
Sources: Indemnification Agreement (Upek Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is validly indemnified pursuant to Section 1 hereof or pursuant to any Directors and Officers Liability Insurance (i"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;
(ii) c. on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iii) d. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconductmisconduct or a breach of Indemnitee's duty of loyalty to the Corporation, or to have resulted in Indemnitee personally having gained in fact a financial profit or other advantage to which Indemnitee was not legally entitled;
(iv) e. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(b)(ii) hereof;
(v) f. on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b9(b) hereof) initiated by the Indemnitee against the Corporation or its directors, officers, employees or other agents unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;Directors of the Corporation or the proceeding is required by law; or
(vi) g. 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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;
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Cohesion Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 or 3 hereof shall be paid by the CompanyCorporation:
(ia) except to the extent the losses, costs and expenses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee is indemnified 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by Corporation for any of the Companyfollowing:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which Director is indemnified pursuant to Section 2 hereof or reimbursed pursuant to any D & 0 Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee Director for an accounting of profits made from the purchase or sale by Indemnitee Director of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of IndemniteeDirector's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation of law if such acts or omission have been established by a judgment or other final adjudication adverse to Director (an "Adverse Judgment");
(v) provided there has been no Change of Control, on account of or arising in response to any action, suit or proceeding (other than 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(b14(b) hereof) initiated by the Indemnitee Director or any of Director's affiliates against Corporation or against any officer, director or shareholder of Corporation unless such action, claim or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vi) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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)lawful; andor
(vii) except on account of any action, suit or proceeding to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of that Director is a plaintiff, a counter-complainant or a cross-complainant therein (aother than an action, suit or proceeding permitted by Section 4(a)(v) 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 Companyhereof).
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 4, no indemnity pursuant to Section 1 3 hereof in an action by or 2 hereof in the right of Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies acts or omissions that Director believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Director, if so established by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.an Adverse Judgment;
(ii) Any activities with respect to any transaction from which Director derived an improper personal benefit, if so established by Indemnitee an Adverse Judgment;
(iii) on account of acts or omissions that show a reckless disregard for Director's duty to 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 Corporation or its shareholders, if so established by an Adverse Judgment;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director's duty to Corporation or its shareholders, if so established by an Adverse Judgment;
(v) on account of proceedings under Section 310 of California Law (contracts in which director has material financial interest), if so established by an Adverse Judgment;
(vi) on account of proceedings under Section 316 of California Law (corporation actions subjecting directors to joint and several liability), if so established by an Adverse Judgment;
(vii) in respect of any claim, issue or matter as to which Director shall have been adjudged to be liable to Corporation in the performance of Director's duty to 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 breach pending action without court approval; and
(ix) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 1 contract
Sources: Indemnification Agreement (Dura Pharmaceuticals Inc/Ca)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCompany for any of the following:
(i) 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 the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which any Proceeding to the extent that the Indemnitee is the subject of an actiona plaintiff, suit a counter-complainant or proceeding described in Section 6(c)(ii) hereof;
(v) on account of any action, claim or proceeding a cross-complainant therein (other than a proceeding Proceeding referred to in Section 7(b) 8 hereof) initiated by the Indemnitee unless such action, claim or proceeding Proceeding was authorized in the specific case by action of the Board of Directors;; or
(viv) 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 Company and the 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); and
(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.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company 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 of the following:
(i) Any solicitation in respect of proxies by any claim, issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Company in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is 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 proxiespending shall determine upon application that, in opposition view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to any solicitation of proxies approved by indemnity for expenses and then only to the Board of Directors.extent that the court shall determine;
(ii) Any activities by of amounts paid in settling or otherwise disposing of a pending action without court approval;
(iii) of expenses incurred in defending a pending action that is settled or otherwise disposed of without court approval;
(iv) on account of the 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 the Indemnitee believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the Indemnitee;
(vi) with respect to any transaction from which the Indemnitee derived an improper personal benefit;
(vii) on account of acts or omissions that show a reckless disregard for the Indemnitee’s duty to the Company or its shareholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing such duties, of a risk of serious injury to the Company or its shareholders; or
(viii) on account of acts or omissions that constitute a breach an unexcused pattern of inattention that amounts to an abdication of the Indemnitee’s duty to the Company or default under any agreement between Indemnitee and the Companyits shareholders.
Appears in 1 contract
Sources: Indemnification Agreement (Connect Biopharma Holdings LTD)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 On account of any suit in which judgment is rendered claim against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiib) on On account of Indemnitee's conduct which is finally adjudged to have been that was knowingly fraudulent or deliberately dishonest dishonest, or to constitute that constituted willful misconduct;
(ivc) on On account of Indemnitee's conduct that constituted a breach of Indemnitee's duty of loyalty to the Corporation or resulted in any personal profit or advantage to which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereofIndemnitee was not legally entitled;
(vd) on On account of any action, claim Indemnitee's conduct if Indemnitee was not acting in good faith and in a manner Indemnitee reasonably believed to be in or proceeding (other than a proceeding referred not opposed to in Section 7(b) hereof) initiated by the Indemnitee unless such action, claim or proceeding was authorized in the specific case by action best interests of the Board of DirectorsCorporation;
(vie) if In connection with any criminal action or proceeding, unless Indemnitee had no reasonable cause to believe that Indemnitee's conduct was unlawful;
(f) For which payment has actually been made to Indemnitee under a final decision by valid and collectible insurance policy or under a Court having jurisdiction valid and enforceable indemnity clause, bylaw or agreement, except in the matter shall determine that respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(g) If indemnification is not lawful (and, in this respect, both the Company Corporation and 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); and) or is prohibited by any applicable state securities laws with respect to any violation of applicable federal or state securities laws;
(viih) except In connection with any proceeding, (or part thereof) by or in the right of the Corporation to procure a judgment in its favor, in which Indemnitee shall have been adjudged to be liable to the Corporation unless and only to the extent that the aggregate Delaware Court of losses Chancery or the court in which such 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 be indemnified thereunder exceeds the sum of (a) indemnity for such losses for expenses 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.
(b) No indemnity pursuant to Section 1 Court of Chancery or 2 hereof such other court 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 of the following:deem proper; or
(i) Any solicitation of proxies In connection with any proceeding, (or part thereof) initiated by Indemnitee, or any proceeding by a group of which he 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 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 solicitation of proxies approved authorized by the Board of DirectorsDirectors 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 DGCL, or (iv) the proceeding is initiated pursuant to Section 8 hereof.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Outdoor Channel Holdings Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by Corporation for any of the Companyfollowing:
(i) 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 D & O Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment judgement is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of IndemniteeOfficer's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation 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 Directorslaws;
(vi) 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 Company and 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)lawful; andor
(vii) except to the extent the aggregate on account 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.
(b) No indemnity pursuant to Section 1 or 2 hereof shall be paid by the Company if the action, suit or proceeding with respect commenced by the Officer against the Corporation or against any officer, director or shareholder of the Corporation unless authorized in the specific case by action of the Board of Directors;
(b) In addition to which a claim 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 Corporation shall be paid by Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies by Indemnitee, acts or by a group omissions that Officer believes to be contrary to the best interests of which he was the Corporation or became a member consisting its shareholders or that involve the absence of two or more persons that had agreed (whether formally or informally and whether or not in writing) to act together for good faith on the purpose part of soliciting proxies, in opposition to any solicitation of proxies approved by the Board of Directors.Officer;
(ii) Any activities by Indemnitee with respect to any transaction from which Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duty to the Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duty to the Corporation or its shareholders;
(v) to the extent prohibited by section 310 of the California Corporations Code, "Contracts In Which Officer Has Material Financial Interest;"
(vii) in respect to any claim, issue or matter as to which Officer shall have been adjudged to be liable to Corporation in the performance of Officer's duty to 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, Officer 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 breach pending action without court approval; or
(ix) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 to of remuneration paid to Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iic) on account of any action, suit or proceeding in which judgment is rendered against Indemnitee Director for an accounting of profits made from the purchase or sale by Indemnitee Director of securities of the Company 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;
(iiid) on account of Indemnitee's Director’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconductdishonest;
(ive) on account of Indemnitee's Director’s conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of or arising in response to any action, claim suit or proceeding (other than a an action, suit or proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Director or any of Director’s affiliates against Corporation or any officer, director or shareholder of Corporation unless such action, claim suit or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vig) 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 Company Corporation and Indemnitee 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); and
(vii) except . In addition 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 those Limitations set forth above in this Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) No 3, 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 Corporation for indemnity hereunder is made arose from or is based upon any of the followingfollowing breaches of duty to Corporation and its shareholders:
(i) Any solicitation acts or omissions that involve intentional misconduct or a knowing and culpable violation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.law;
(ii) Any activities by Indemnitee acts or omissions that Director believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Director;
(iii) any transaction from which Director derived an improper personal benefit;
(iv) acts or omissions that show a reckless disregard for Director’s duty to Corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to Corporation or its shareholders;
(v) acts or omissions that constitute a breach an unexcused pattern of inattention that amounts to an abdication of Director’s duty to Corporation or default under any agreement between Indemnitee its shareholders;
(vi) acts or omissions prohibited by Section 310 of the California Corporations Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors”;
(vii) acts or omissions prohibited by Section 316 of the CompanyCalifornia Corporations Code, “Directors’ Liability for Distributions, Loans and Guarantees”.
Appears in 1 contract
Sources: Indemnification Agreement (Cardiodynamics International Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCompany for any of the following:
(i) to indemnify the Indemnitee for any expenses incurred by the Indemnitee in connection with any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy purchased and maintained by the Company, except in respect of any excess beyond the amount of payment under such insurance; or for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is the subject of an action, suit any Proceeding initiated 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 brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable law unless such action, claim or proceeding Proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of the Indemnitee’s conduct that is the subject of any Proceeding described in Section 7(b)(ii) hereof; or
(vi) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the 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); and
(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.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company 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 of the following:
(i) Any solicitation in respect of proxies by any claim, issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Company in the performance of the Indemnitee’s duty to the Company and its stockholders, unless and only to the extent that the court in which such Proceeding is 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 proxiespending shall determine upon application that, in opposition view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to any solicitation of proxies approved by indemnity for expenses and then only to the Board of Directors.extent that the court shall determine;
(ii) Any activities by of amounts paid in settling or otherwise disposing of a pending action without court approval if applicable;
(iii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law;
(iv) on account of acts or omissions that the Indemnitee believes to be contrary to the best interests of the Company or its stockholders or that involve the absence of good faith on the part of the Indemnitee;
(v) with respect to any transaction from which the Indemnitee derived an improper personal benefit;
(vi) on account of acts or omissions that show a reckless disregard for the Indemnitee’s duty to the Company or its stockholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing such duties, of a risk of serious injury to the Company or its stockholders; or
(vii) on account of acts or omissions that constitute a breach an unexcused pattern of inattention that amounts to an abdication of the Indemnitee’s duty to the Company or default under any agreement between Indemnitee and the Companyits stockholders.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section ----------------------------------- 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 reimbursed pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to of remuneration paid to Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iic) on account of any action, suit or proceeding in which judgment is rendered against Indemnitee Director for an accounting of profits made from the purchase or sale by Indemnitee Director of securities of the Company 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;
(iiid) on account of IndemniteeDirector's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of IndemniteeDirector's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of or arising in response to any action, claim suit or proceeding (other than a an action, suit or proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Director or any of Director's affiliates against Corporation or any officer, director or stockholder of Corporation unless such action, claim suit or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vig) 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 Company Corporation and Indemnitee 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Corsair Communications Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section ----------------------------------- 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 reimbursed pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to of remuneration paid to Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iic) on account of any action, suit or proceeding in which judgment is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iiid) on account of IndemniteeOfficer's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of IndemniteeOfficer's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of or arising in response to any action, claim suit or proceeding (other than a an action, suit or proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Officer or any of Officer's affiliates against Corporation or any officer, director or stockholder of Corporation unless such action, claim suit or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vig) 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 Company Corporation and Indemnitee 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Corsair Communications Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company:
(ia) 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;
(iib) on account of any suit in which judgment is rendered claim 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iiic) on account of Indemnitee's ’s conduct which that is finally adjudged to have been established by a final judgment as knowingly fraudulent or deliberately dishonest or to constitute that constituted willful misconduct;
(ivd) on account of Indemnitee's ’s conduct that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereofIndemnitee was not legally entitled;
(ve) on account for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under any valid and enforceable non-Company indemnity clause, bylaw or agreement, except in respect of any actionexcess beyond payment under such insurance, claim clause, bylaw 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 Directorsagreement;
(vif) 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 Company and 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); and;
(viig) 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.
(b) 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 of the following:
(i) Any any solicitation of proxies by Indemnitee, or by a group of which he or she 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 solicitation of proxies approved by the Board of Directors.; or
(ii) Any any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company; or
(h) in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or any Subsidiary or the directors, officers, employees or other agents of the Company or any Subsidiary, including, but not limited to, an action described under Section 8(c)(ii) herein, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 to of remuneration paid to Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iic) on account of any action, suit or proceeding in which judgment is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iiid) on account of Indemnitee's Officer’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconductdishonest;
(ive) on account of Indemnitee's Officer’s conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of or arising in response to any action, claim suit or proceeding (other than a an action, suit or proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Officer or any of Officer’s affiliates against Corporation or any officer, director or shareholder of Corporation unless such action, claim suit or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vig) 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 Company Corporation and Indemnitee 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); and
(vii) except . In addition 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 those limitations set forth above in this Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) No 3, 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 Corporation for indemnity hereunder is made arose from or is based upon any of the followingfollowing breaches of duty to Corporation and its shareholders:
(i) Any solicitation acts or omissions that involve intentional misconduct or a knowing and culpable violation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.law;
(ii) Any activities by Indemnitee acts or omissions that Officer believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Officer;
(iii) any transaction from which Officer derived an improper personal benefit;
(iv) acts or omissions that show a reckless disregard for Officer’s duty to Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to Corporation or its shareholders;
(v) acts or omissions that constitute a breach an unexcused pattern of inattention that amounts to an abdication of Officer’s duty to Corporation or default under any agreement between Indemnitee its shareholders;
(vi) acts or omissions prohibited by Section 310 of the California Corporations Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors”;
(vii) acts or omissions prohibited by Section 316 of the CompanyCalifornia Corporations Code, “Directors’ Liability for Distributions, Loans and Guarantees”.
Appears in 1 contract
Sources: Indemnification Agreement (Cardiodynamics International Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(i) 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;
(ii) c. on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;,
(iii) d. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(iv) e. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;; 2 3
(v) f. on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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) g. 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to ----------------------------------- Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 lawlaw ;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the CompanyCorporation:
(ia) 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 2 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to of 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;
(iic) on account of any suit Proceeding in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto as amended, or similar provisions of any federal, state or local statutory law;
(iiid) on account of Indemnitee's ’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconductmisconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(ive) provided there has been no Change of Control, on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described arising in Section 6(c)(ii) hereof;
(v) on account of response to any action, claim or proceeding Proceeding (other than a proceeding Proceeding referred to in Section 7(b13(b) hereof) initiated by the Indemnitee or any of Indemnitee’s affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee’s affiliates is a counter-complainant or a cross-complainant), unless (i) such action, claim or proceeding indemnity is expressly required to be made by applicable law; (ii) such Proceeding was authorized in the specific case by action of the Board Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of DirectorsIndemnitee’s entitlement to indemnification was not made in a timely manner;
(vif) on account of Indemnitee’s conduct which is the subject of any Proceeding brought by Corporation and approved by a majority of the Board which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders; or
(g) 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 Company and 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); and
(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 Companylawful.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation for any of the following:
(i) 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;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation of an action, suit or proceeding described in Section 6(c)(ii) hereoflaw;
(v) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vii) 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 Company Corporation and 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); and
(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.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies by acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence in good faith on the part of Indemnitee, 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 solicitation of proxies approved by the Board of Directors.;
(ii) Any activities by 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 a director's or an officer'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 the Code, including but not limited to Section 310 of the California Corporations Code, "Contracts In Which Director Has Material Financial Interest" and Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vi) 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;
(vii) of amounts paid in settling or otherwise disposing of a breach pending action without court approval; or
(viii) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's ’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's ’s conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 the Corporation;
(b) in respect to of remuneration paid to Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iic) on account of any action, suit or proceeding in which judgment is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iiid) on account of IndemniteeOfficer's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of IndemniteeOfficer's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of or arising in response to any action, claim suit or proceeding (other than a an action, suit or proceeding referred to in Section 7(b8(b) hereof) initiated by Officer or any of Officer's affiliates against the Indemnitee Corporation or any officer, director or stockholder of the Corporation unless such action, claim suit or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of the Corporation;
(vig) 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 Company Corporation and Indemnitee 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Vista Medical Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) ; on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iviii) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(viv) 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;
(viv) 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 Company and 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); and
vi) 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.
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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. To the extent that any of the matters set forth in subsections (a) No through (l) of this Section 3 are successfully established by the Company as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 2 hereof shall will be paid payable by the Company:
(i) 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;
(iia) on account of any suit in which judgment is rendered claim 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iiib) on account of Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
(c) on account of Indemnitee's conduct that he or she believed to be contrary to the best interests of the Company 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 knowing and culpable violation of law;
(e) on account of Indemnitee's conduct that showed 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 his or her duties, of a risk of serious injury to the Company or its shareholders;
(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 Company or its shareholders;
(g) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent constituted a violation of the Indemnitee's duties under Sections 310 or deliberately dishonest or to constitute willful misconduct316 of the Code;
(ivh) on account for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of Indemnitee's conduct which is the subject of an actionany excess beyond payment under such insurance, suit clause, bylaw or proceeding described in Section 6(c)(ii) hereofagreement;
(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;
(vii) 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 Company and Indemnitee have been advised that the Securities and Exchange Commission believes that considers indemnification for liabilities arising under the federal securities laws is to be against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and;
(viij) except in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the 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 Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the extent powers vested in the aggregate of losses to be indemnified thereunder exceeds Company under the sum of Code, or (aiv) such losses for which the Indemnitee proceeding is indemnified initiated 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.9 hereof;
(bk) 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 any action by or is based upon any in the right of the followingCompany:
(i) Any solicitation if Indemnitee is adjudged to be liable to the Company in performance of proxies by Indemnitee's duty to the Company and its shareholders, unless and only to the extent that the court in which such action is 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 proxiespending shall determine upon application that, in opposition view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to any solicitation of proxies approved by indemnity for expenses, and then only to the Board of Directors.extent that the court shall determine;
(ii) Any activities 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 Company 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 that constitute a breach has been successful on the merits or unless the indemnification has been approved by the shareholders of or default under any agreement between the Company in accordance with Section 153 of the Code (with the shares of the Indemnitee and the Companynot being entitled to vote thereon).
Appears in 1 contract
Sources: Indemnification Agreement (Landa Management Systems Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is 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 Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission (the "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); and
(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 D&O Insurance purchased and maintained by the Company.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (Computer Access Technology Corp)
Limitations on Additional Indemnity. (a) a. No indemnity pursuant to Section 2 hereof shall be paid by the CompanyCorporation:
(i) 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 director and officer liability insurance purchased and maintained by 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;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiiiv) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ivv) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vvi) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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
(vivii) 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 Company Corporation and 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); and
(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.
(b) b. No indemnity pursuant to Section 1 or 2 hereof shall be paid by the Company Corporation if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any any solicitation of proxies by Indemnitee, or by a group of which he Indemnitee 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 solicitation of proxies approved by the Board of Directors.; or
(ii) Any any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the CompanyCorporation.
Appears in 1 contract
Sources: Indemnification Agreement (Silicon Laboratories Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) in 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 On account of any suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) on On account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on On account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(v) on 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 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 Company and 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); and
(vii) except 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 D&O Insurance purchased and maintained by the Company.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Sources: Indemnification Agreement (SCC Communications Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company:
(i) 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;
(iia) on account of any suit in which judgment is rendered claim or 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) 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 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 4(a), indemnification pursuant to this Agreement shall then be permitted;
(iiib) on account of Indemnitee's ’s conduct which that is finally adjudged to have been established by a final judgment as knowingly fraudulent or deliberately dishonest or to constitute that constituted willful misconduct;
(ivc) on account of Indemnitee's ’s conduct that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereofIndemnitee was not legally entitled;
(vd) on account for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any actionexcess beyond payment under such insurance, claim clause, bylaw 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 Directorsagreement;
(vie) 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 Company and 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); andor
(viif) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of in connection with any proceeding (aor part thereof) 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.
(b) 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 of the following:
(i) Any solicitation of proxies initiated by Indemnitee, or any proceeding by a group of which he was Indemnitee against the Company or became a member consisting of two its directors, officers, employees or more persons that had agreed other agents, unless (whether formally or informally and whether or not in writingi) such indemnification is expressly required to act together for the purpose of soliciting proxiesbe made by law, in opposition to any solicitation of proxies approved by the Board of Directors.
(ii) Any activities the proceeding was authorized by Indemnitee that constitute a breach the board of or default under any agreement between Indemnitee and directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the DGCL, or (iv) the proceeding is initiated pursuant to Section 11 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Pdi Inc)
Limitations on Additional Indemnity. (a) No 'indemnity pursuant to ----------------------------------- Section 2 hereof shall be paid by the CompanyCorporation:
(ia) 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 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;
(iic) on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7 (c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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;
(vig) 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 Company Corporation and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 2(b) hereof shall be paid by the CompanyCorporation:
(iA) in with 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;
(iiB) on account of any suit in which judgment is rendered against Indemnitee Indenmnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iiiC) on account of Indemnitee's ’s conduct which is the subject of an action suit or proceeding brought by or in the right of the Corporation and approved by the majority of the Board which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of material confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation or any other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders;
(D) if applicable law so provides, if Indemnitee shall have been finally adjudged to be liable to the Corporation unless and to the extent that the Court of Chancery of the State of Delaware shall determine that such indemnification may be made;
(E) on account of Indemnitee’s conduct which is finally adjudged in a final decision by a court having jurisdiction in the matter to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(vF) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(bSections 2(b), (2)(g) or 11 hereof) initiated by the Indemnitee against the Corporation unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(viG) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and 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);
(H) subject to Section 2(c), if the Reviewing Party shall have determined (in a written opinion, in any case in which the Independent Legal Counsel is involved) that Indemnitee would not be permitted to be indemnified with respect to a specific matter under applicable law; provided that any such finding shall not prejudice Indemnitee’s right to indemnification with respect at any other matter; and
(viiI) except unless Indemnitee acknowledges and agrees that the obligation of the Corporation to make an advance payment of Expenses to Indemnitee pursuant to Section 4 (an “Expense Advance") shall be subject to the condition that, if, when and to the extent that the aggregate Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, this agreement or the Corporation’s Bylaws, the Corporation shall be entitled to be reimbursed by Indemnitee (who hereby undertakes and agrees to reimburse the Corporation) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of losses competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, this agreement or the Corporation’s Bylaws, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified thereunder exceeds under applicable law shall not be binding and Indemnitee shall not be required to reimburse the sum Corporation for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of (a) such losses appeal therefrom have been exhausted or lapsed). Indemnitee’s obligation to reimburse the Corporation for which the Indemnitee is indemnified pursuant to Section 1 hereof any Expense Advance shall be unsecured and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained no interest shall be charged by the Company.
(b) No indemnity pursuant Corporation in connection with any such amounts determined 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 of the following:
(i) Any solicitation of proxies owed by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by Corporation for any of the Companyfollowing:
(i) 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 2 hereof or reimbursed pursuant to any D & 0 Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of IndemniteeOfficer's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation of law if such acts or omission have been established by a judgment or other final adjudication adverse to Officer (an "Adverse Judgment");
(v) provided there has been no Change of Control, on account of or arising in response to any action, suit or proceeding (other than 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(b14(b) hereof) initiated by the Indemnitee Officer or any of Officer's affiliates against Corporation or against any officer, director or shareholder of Corporation unless such action, claim or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of Corporation;
(vi) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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)lawful; andor
(vii) except on account of any action, suit or proceeding to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of that Officer is a plaintiff, a counter-complainant or a cross-complainant therein (aother than an action, suit or proceeding permitted by Section 4(a)(v) 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 Companyhereof).
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 4, no indemnity pursuant to Section 1 3 hereof in an action by or 2 hereof in the right of Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies acts or omissions that Officer believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Officer, if so established by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.an Adverse Judgment;
(ii) Any activities with respect to any transaction from which Officer derived an improper personal benefit, if so established by Indemnitee an Adverse Judgment;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duty to Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders, if so established by an Adverse Judgment;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duty to Corporation or its shareholders, if so established by an Adverse Judgment;
(v) in respect of any claim, issue or matter as to which Officer shall have been adjudged to be liable to Corporation in the performance of Officer's duty to 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, Officer 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 breach pending action without court approval; and
(vii) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 1 contract
Sources: Indemnification Agreement (Dura Pharmaceuticals Inc/Ca)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(ia) 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 Company;
(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;
(iic) on account of any suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iiid) on account of Indemnitee's ’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconduct;
(ive) on account of Indemnitee's ’s conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii7(c)(ii) hereof;
(vf) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(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;; or
(vig) 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 Company and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by Corporation for any of the Companyfollowing:
(i) to the extent the aggregate of losses to be indemnified exceeds the sum of (A) such losses for which the Officer is indemnified pursuant to Section 1 hereof and (B) any settlement pursuant to any D & O Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee Officer if it shall be determined by a final judgment without right of appeal, or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any suit in which judgment is rendered against Indemnitee Officer for an accounting of profits made from the purchase or sale by Indemnitee Officer of securities of the Company 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;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of IndemniteeOfficer's conduct which is the subject acts or omissions that involve intentional misconduct or a knowing and culpable violation of an action, suit or proceeding described in Section 6(c)(ii) hereoflaw;
(v) on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(b8(b) hereof) initiated by the Indemnitee Officer unless such action, claim or proceeding was authorized in by the specific case by action uninterested directors of the Board of Directors;Corporation; or
(vi) if a final decision without right of appeal by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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 Companylawful.
(b) No In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies by Indemnitee, acts or by a group omissions that Officer believed or believes to be contrary to the best interests of which he was the Corporation or became a member consisting its shareholders or that involve the absence of two or more persons that had agreed (whether formally or informally and whether or not in writing) to act together for good faith on the purpose part of soliciting proxies, in opposition to any solicitation of proxies approved by the Board of Directors.Officer;
(ii) Any activities by Indemnitee with respect to any transaction from which Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duties to the corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing a Officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duties to the Corporation or its shareholders;
(v) to the extent prohibited by Section 144 of the Delaware general Corporation Law, entitled "Interested Directors; Quorum;"
(vi) in respect of any claim, issue or matter as to which Officer shall have been adjudged to be liable to Corporation in the performance of Officer's duties to 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, Officer is fairly and reasonably entitled to indemnity for expenses and then only to the extent that such court shall determine;
(vii) of amounts paid in settling or otherwise disposing of a breach pending action without court approval; and
(viii) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the CompanyCorporation:
(ia) 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 2 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to of 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;
(iic) on account of any suit Proceeding in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto as amended, or similar provisions of any federal, state or local statutory law;
(iiid) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconductmisconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(ive) provided there has been no Change of Control, on account of or arising in response to any Proceeding (other than a Proceeding referred to in Section 13(b) hereof) initiated by Indemnitee or any of Indemnitee's affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee's affiliates is a counter-complainant or a cross-complainant), unless (i) such indemnity is expressly required to be made by applicable law; (ii) such Proceeding was authorized in the specific case by action of the Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of Indemnitee's entitlement to indemnification was not made in a timely manner;
(f) on account of Indemnitee's conduct which is 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 Proceeding brought by Corporation and approved by 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 majority of the Board which alleges willful misappropriation of Directors;corporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee's fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee's duty to Corporation or its stockholders; or
(vig) 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 Company and 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); and
(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 Companylawful.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 2(b) hereof shall be paid by the CompanyCorporation:
(i) a. 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) b. on account of any suit in which judgment is rendered against Indemnitee Indenmnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(bSection16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federalFederal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) c. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described brought by the Corporation and approved by the majority of the Board of Directors which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of material confidential information in Section 6(c)(ii) hereofviolation of Indemnitee's fiduciary or contractual obligations to Corporation or any other willful and deliberate breach in bad faith of Indemnitee's duty to Corporation or its stockholders;
(v) d. on account of Indemnitee's conduct which is finally adjudged in a final decision by a court having jurisdiction in the matter to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
e. on account of any action, claim or proceeding (other than a proceeding referred to in Section 7(bSections 2(b), (2)(g) or 11 hereof) initiated by the Indemnitee against the Corporation unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(vi) f. if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal Federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and;
g. subject to Section 2(c), if the Reviewing Party shall have determined (viiin a written opinion, in any case in which the Independent Legal Counsel is involved) except to the extent the aggregate of losses that Indemnitee would not be permitted 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.
(b) 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 specific matter under applicable law; provided that any of the following:
(i) Any solicitation of proxies by such finding shall not prejudice Indemnitee, 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) 's right to act together for the purpose of soliciting proxies, in opposition to indemnification with respect at any solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.other matter; or
Appears in 1 contract
Limitations on Additional Indemnity. To the extent that any of the ----------------------------------- matters set forth in subsections (a) No 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 2 2(a) hereof shall will be paid payable by the CompanyCorporation:
(i) 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) a. on account of any suit in which judgment is rendered claim against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company 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;
(iii) b. on account of Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
c. on account of Indemnitee's conduct that he or she 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 knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a reckless disregard for the 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 his or her duties, of a risk of serious injury to the Corporation or its shareholders;
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 is finally adjudged to have been knowingly fraudulent constituted a violation of the Indemnitee's duties under Section 310 or deliberately dishonest or to constitute willful misconductSection 316 of the Code;
(iv) on account h. for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw, or agreement, except in respect of Indemnitee's conduct which is the subject of an actionany excess beyond payment under such insurance, suit clause, bylaw, or proceeding described in Section 6(c)(ii) hereofagreement;
(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) i. 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 Company Corporation and 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); and;
j. in connection with any proceeding (viior part thereof) 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.
(b) 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 of the following:
(i) Any solicitation of proxies initiated by Indemnitee, or any proceeding by a group of which he 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 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 solicitation of proxies approved authorized by the 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 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) Any activities would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee that constitute a breach has been successful on the merits or unless the indemnification has been approved by the shareholders of or default under any agreement between the corporation in accordance with Section 153 of the Code (with the shares of the Indemnitee and the Companynot being entitled to vote thereon).
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(; iv) on account of Indemnitee's conduct which is 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 Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is 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 Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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 Directors' Insurance purchased and maintained by the Company.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is 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 board of Directorsdirectors;
(vi) if a final decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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 D&O Insurance purchased and maintained by the Company.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board board of Directorsdirectors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the CompanyCorporation:
(ia) 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 2 hereof or pursuant to any D & O Insurance purchased and maintained by Corporation;
(b) in respect to of 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;
(iic) on account of any suit Proceeding in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto as amended, or similar provisions of any federal, state or local statutory law;
(iiid) on account of Indemnitee's ’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest dishonest, or to constitute willful misconductmisconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(ive) provided there has been no Change of Control, on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described arising in Section 6(c)(ii) hereof;
(v) on account of response to any action, claim or proceeding Proceeding (other than a proceeding Proceeding referred to in Section 7(b) 12 hereof) initiated by the Indemnitee or any of Indemnitee’s affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee ‘s affiliates is a counter-complainant or a cross-complainant), unless (i) such action, claim or proceeding indemnity is expressly required to be made by applicable law; (ii) such Proceeding was authorized in the specific case by action of the Board Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of DirectorsIndemnitee’s entitlement to indemnification was not made in a timely manner;
(vif) on account of Indemnitee’s conduct which is the subject of any Proceeding brought by Corporation and approved by a majority of the Board which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders; or
(g) 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 Company and 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); and
(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 Companylawful.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
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Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company:
(i) 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 suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is 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 Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and 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); and
(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 0 Insurance purchased and maintained by the Company.
(b) 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 of the following:
(i) Any solicitation of proxies by Indemnitee, 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 solicitation of proxies approved by the Board of Directors.
(ii) Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company.
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Sources: Indemnification Agreement (Restoration Hardware Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section section 2 hereof shall be paid by the Company:
(ia) 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;
(iib) on account of any suit in which judgment is rendered 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 section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iiic) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or fraudulent, deliberately dishonest or to constitute willful misconduct;
(ivd) on account of Indemnitee's conduct on which it is the subject of finally adjudged that Indemnitee derived an action, suit or proceeding described in Section 6(c)(ii) hereofimproper personal benefit;
(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;
(vie) if a final decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful lawful;
(and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising f) 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)circumstances described in section 6.2 hereof; andor
(viig) except to the extent the aggregate in respect of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the any action brought by 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.
(b) 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 of the following:
unless (i) Any solicitation the bringing of proxies by Indemnitee, 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 solicitation of proxies said action shall have been approved by the Board of Directors.
Directors of the Company, (ii) Any activities such indemnification is expressly required to be made by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and law, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Delaware General Corporation law, or (iv) the proceeding is initiated pursuant to section 4.2 hereof.
Appears in 1 contract
Sources: Indemnification Agreement (Irvine Sensors Corp/De/)
Limitations on Additional Indemnity. (a) No a. Without limiting the indemnification provided for under Section 1 hereof, the Corporation shall not be required to pay any indemnity pursuant to Section 2 hereof shall be paid by the Companyhereof:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which Indemnitee (a) is indemnified pursuant to Section 1 hereof or (b) has been reimbursed pursuant to any Directors and Officers Liability Insurance (“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 (from which there is no right of appeal) that such remuneration was in violation of law;
(ii) on account of any suit in which judgment is rendered 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) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct ’s acts or omissions if it shall be determined by a final adjudication (from which there is finally adjudged to have been knowingly fraudulent no right of appeal) that such acts or deliberately dishonest omissions involve intentional misconduct or to constitute willful misconducta knowing and culpable violation of law;
(iv) on account of Indemnitee's conduct which is 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) 8 hereof) initiated by the Indemnitee unless such action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of Indemnitee’s conduct if it shall be determined by a final adjudication (from which there is no right of appeal) that such conduct constituted the willful misappropriation of corporate assets by Indemnitee, disclosure of confidential information in willful and deliberate breach in bad faith of Indemnitee’s fiduciary or contractual obligations to the Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to the Corporation or its shareholders; or
(vi) if a final decision adjudication (from which there is no right of appeal) by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and 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 unenforceable, and that claims for indemnification should be submitted to appropriate courts for adjudication); and.
(vii) except b. In addition to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of those limitations set forth above in paragraph (a) such losses for which the Indemnitee is indemnified pursuant to of this Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) No 3, no indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Corporation shall be paid by the Company if the action, suit or proceeding with respect to which a claim Corporation for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation on account of proxies by 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, 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 solicitation of proxies approved by the Board of Directors.;
(ii) Any activities by 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 Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors;”
(vi) to the extent prohibited by Section 316 of the Code, “Directors’ Liability for Distributions, Loans and Guarantees ” (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 breach pending action without court approval; or
(ix) of expenses incurred in defending a pending action which is settled or default under any agreement between Indemnitee and the Companyotherwise disposed of without court approval.
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