Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer shall submit to the Company a written request, including such documentation and information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer has requested indemnification. (b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought. (c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed. (d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit a written request to the Company for indemnification hereunder. The time at which Indemnitee submits a written requestrequest for indemnification shall be determined by the Indemnitee in the Indemnitee's sole discretion. Once Indemnitee submits such a written request for indemnification, including such documentation a Determination (as defined by Section 24 of this Agreement) shall thereafter be made, as provided in and information as is reasonably available only to Officer and is reasonably necessary to determine whether and to what the extent Officer is entitled to indemnificationrequired by Section 6(c) of this Agreement. The determination In no event shall a Determination of OfficerIndemnitee’s entitlement to indemnification be made, or be required to be made, as a condition to or otherwise in connection with any advancement of Expenses pursuant to Section 8 of this Agreement or, with respect to any Proceeding, to the extent Indemnitee has been successful on the merits or otherwise in such Proceeding. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall be made not later than 60 days after receipt by relieve the Company of any liability that it may have to Indemnitee unless, and to the written request for indemnification. extent that, such failure actually and materially prejudices the interests of the Company.
(b) The Secretary of the Company shall, promptly upon receipt of such a request claim for indemnificationindemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtindemnification.
(c) In Upon submission of a written request by the event that the determination of Indemnitee for indemnification as provided in Section 6(a), a Determination shall be made as to Indemnitee’s entitlement to indemnification. Any such Determination shall be made within thirty (30) days after receipt of Indemnitee’s written request for indemnification pursuant to Section 6(a), unless Indemnitee agrees to a longer period, and such Determination shall be made either (i) by a majority of the Disinterested Directors, even though less than a quorum, so long as there are Disinterested Directors or contribution is to Indemnitee does not request that such Determination be made by Independent Counsel, or (ii) if there are no Disinterested Directors or if so requested by ▇▇▇▇▇▇▇▇▇▇, in Indemnitee’s sole discretion, by Independent Counsel pursuant in a written opinion to Section 6(bthe Company and Indemnitee. If a Determination is made that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such Determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including, without limitation, providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such Determination. Any Expenses incurred by Indemnitee in so cooperating shall be advanced and borne by the Company (irrespective of the Determination as to Indemnitee’s entitlement to indemnification) and the Company is liable to indemnify and hold Indemnitee harmless therefrom. If the person, persons or entity making such Determination shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of this Agreementthe application for indemnification, such person, persons or entity shall reasonably prorate such part of indemnification among such claims, issues or matters.
(d) In the event Indemnitee requests that the Determination be made by Independent Counsel shall be selected as provided in this Section 6(c). The Counsel, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection by made by the Board of Directors, in which event the Board of Directors shall make such selection on behalf of the Company, subject to the remaining provisions of this Section 6(d)), and Indemnitee or the Company Company, as the case may be, shall give written notice to Officer the other, advising Officer the Company or Indemnitee of the identity of the Independent Counsel so selected. Officer The Company or Indemnitee, as the case may be, may, within seven ten (10) days after receipt of such written notice of selection shall have been givenreceived, deliver to Indemnitee or the Company Company, as the case may be, a written objection to such selection. Such ; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 24 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such a written objection is madeso made and substantiated, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Court Company or Indemnitee to the other’s selection of Chancery of the State of Delaware Independent Counsel or for the appointment as Independent Counsel of a person selected by such the court or by such other person as such the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement. Any expenses incurred by Independent Counsel shall be borne by the Company (irrespective of the Determination of Indemnitee’s entitlement to indemnification) and not by Indemnitee, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c6(d), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit a written request to the Company for indemnification hereunder. The time at which Indemnitee submits a written requestrequest for indemnification shall be determined by the Indemnitee in the Indemnitee’s sole discretion. Once Indemnitee submits such a written request for indemnification (and only at such time that Indemnitee submits such a written request for indemnification), including such documentation a Determination (as defined by Section 26 of this Agreement) shall thereafter be made, as provided in and information as is reasonably available only to Officer and is reasonably necessary to determine whether and to what the extent Officer is entitled to indemnificationrequired by Section 7(c) of this Agreement. The determination In no event shall a Determination of OfficerIndemnitee’s entitlement to indemnification shall be made not later than 60 days after made, or be required to be made, as a condition to or otherwise in connection with any advancement of Expenses pursuant to Section 9 of this Agreement or, with respect to any Proceeding, to the extent Indemnitee has been successful on the merits or otherwise in such Proceeding. If, at the time of receipt by the Company of the written any such request for indemnification. , the Company has director and officer insurance policies in effect, the Company will promptly notify the relevant insurers in accordance with the procedures and requirements of such policies.
(b) The Secretary of the Company shall, promptly upon receipt of such a request claim for indemnificationindemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtindemnification.
(c) In Upon submission of a written request by the event that the determination of Indemnitee for indemnification as provided in Section 7(a), a Determination shall be made as to Indemnitee’s entitlement to indemnification. Any such Determination shall be made within thirty (30) days after receipt of Indemnitee’s written request for indemnification or contribution is pursuant to Section 7(a), unless Indemnitee agrees to a longer period, and such Determination shall be made either (i) by a majority of the Disinterested Directors, even though less than a quorum, so long as Indemnitee does not request that such Determination be made by Independent Counsel, or (ii) if so requested by Indemnitee, in Indemnitee’s sole discretion, by Independent Counsel pursuant in a written opinion to Section 6(bthe Company and Indemnitee. If a Determination is made that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such Determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such Determination. Any Expenses incurred by Indemnitee in so cooperating shall be advanced and borne by the Company (irrespective of the Determination as to Indemnitee’s entitlement to indemnification) and the Company is liable to indemnify and hold Indemnitee harmless therefrom. If the person, persons or entity making such Determination shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of this Agreementthe application for indemnification, such person, persons or entity shall reasonably prorate such part of indemnification among such claims, issues or matters.
(d) In the event Indemnitee requests that the Determination be made by Independent Counsel shall be selected as provided in this Section 6(c). The Counsel, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection by made by the Board of Directors, in which event the Board of Directors shall make such selection on behalf of the Company, subject to the remaining provisions of this Section 7(d)), and Indemnitee or the Company Company, as the case may be, shall give written notice to Officer the other, advising Officer the Company or Indemnitee of the identity of the Independent Counsel so selected. Officer The Company or Indemnitee, as the case may be, may, within seven ten (10) days after receipt of such written notice of selection shall have been givenreceived, deliver to Indemnitee or the Company Company, as the case may be, a written objection to such selection. Such ; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 26 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such a written objection is madeso made and substantiated, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a7(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Court Company or Indemnitee to the other’s selection of Chancery of the State of Delaware Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such the court or by such other person as such the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and . Any expenses incurred by Independent Counsel shall be borne by the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless (irrespective of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination Determination of Indemnitee’s entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct indemnification) and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, not by clear and convincing evidence, that Officer is not so entitledIndemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Fleetcor Technologies Inc)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain Whenever Indemnitee believes that Indemnitee is entitled to indemnification pursuant to this Agreement, Indemnitee shall submit a written request for indemnification to the Corporation. The Corporation’s obligation to comply with such request for indemnification is subject to the condition that the matter of the Indemnitee’s entitlement to such indemnification under applicable law has been heard before a forum referred to in Section 5(b) below and such forum shall not have determined that the Indemnitee did not meet the required standard of conduct under applicable law; provided, however, that such condition shall not be applicable (and no such hearing or determination shall be required) (i) to the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding or in defense of any claim, issue or matter therein or where indemnification is otherwise mandatory under applicable law, (ii) with respect to any request for indemnification by an Indemnitee under Section 3(b) or (iii) in any case in which such determination is, by the express terms of this Agreement (including but not limited to Section 4 hereof), deemed to have been made or is otherwise not required to be made under this Agreement, Officer and in each such case payment of indemnification to which an Indemnitee is entitled under this Agreement shall submit to be made within thirty (30) days after such request is received by the Company a written request, including such Corporation. Any request for indemnification shall include sufficient documentation and or information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled Indemnitee for the determination of entitlement to indemnification. The determination In any event, Indemnitee shall submit Indemnitee’s claim for indemnification within a reasonable time, not to exceed five (5) years after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of Officer’s entitlement to indemnification shall be made not a plea of nolo contendere or its equivalent, or final determination, whichever is the later than 60 days after receipt by the Company of the written request date for which Indemnitee requests indemnification. The Secretary or other appropriate officer of the Company Corporation shall, promptly upon receipt of such a Indemnitee’s request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested made such request. Determination of Indemnitee’s entitlement to indemnification shall be made not later than sixty (60) days after the Corporation’s receipt of Indemnitee’s written request for such indemnification, provided that any request for indemnification for Liabilities, other than amounts paid in settlement, shall have been made after a determination thereof in a Proceeding.
(b) OfficerThe Indemnitee shall be entitled to select the forum in which the Indemnitee’s entitlement to indemnification under any of Sections 2will be heard, 3, and 4, and to contribution under Section 5, of this Agreement which selection shall be determined included in the specific case: (i) by written request for indemnification referred to in Section 5(a), except that the Board Indemnitee may not choose to have the stockholders of Directors by a majority vote of a quorum the Corporation make such determination without the consent of the Board of Directors consisting Directors. Subject to the foregoing, the forum shall be any one of the following:
(i) the stockholders of the Corporation (with such approval being sufficient if it is given by stockholders holding a majority of the shares present at a meeting of the stockholders at which a quorum is present);
(ii) a majority vote of Disinterested Directors (as hereinafter defined); or , even though less than a quorum;
(iiiii) by Independent Counsel (as hereinafter defined)Legal Counsel, whose determination shall be made in a written opinion opinion; or
(iv) a panel of three arbitrators, one selected by the Corporation, another by Indemnitee and the third by the first two arbitrators; or if a quorum for any reason three arbitrators are not selected within thirty (30) days after the appointment of the Board first arbitrator, then selection of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination additional arbitrators shall be made by the Chancery Court American Arbitration Association. If any arbitrator resigns or is unable to serve in such capacity for any reason, the American Arbitration Association shall select such arbitrator’s replacement. The arbitration shall be conducted pursuant to the commercial arbitration rules of the State of Delaware or the court American Arbitration Association now in which the Proceeding giving rise to the claim for indemnification is broughteffect.
(c) In the event that the determination Payment of entitlement indemnification for Liabilities and Expenses as to indemnification or contribution which Indemnitee is to be made by Independent Counsel entitled determined pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification 5 or deemed determined pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof 4 shall be on the Company made as promptly as practicable after such determination or its representative to establish, by clear deemed determination and convincing evidence, that Officer is not so entitledin any event within thirty (30) days thereafter.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Secretary of the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such request such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsuch Indemnified Amounts. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay Indemnitee the appropriate Indemnified Amounts unless it is established that Indemnitee has not met any applicable standard of conduct set forth in the Charter, the MGCL or the Bylaws or is not otherwise entitled to receive the Indemnified Amounts under this Agreement. For purposes of determining whether Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to Indemnitee the Company has the burden of proof in establishing that Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that Indemnitee did not meet the requisite standard of conduct; provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that Indemnitee did not meet the applicable standard of conduct.
(c) Any determination that Indemnitee has not met the applicable standard of conduct required to qualify for indemnification or is not otherwise entitled to receive the Indemnified Amounts under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made either (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); directors who were not parties of such Proceeding or (ii) by Independent Counsel (as hereinafter defineddefined below); provided that the manner in which (and, if applicable, the Independent Counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as the “Senior Officer”) and by Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company for such purpose, provided that such counsel is approved in advance in writing by both the Senior Officer and Indemnitee. The reasonable fees and expenses of this Agreement, the such Independent Counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written notice agreement with respect to Officer advising Officer the payment of their reasonable fees and expenses and such other matters as may be reasonably requested by such counsel. Indemnitee may make a written objection to the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to selected by the Company a written objection to such selectionCompany. Such objection may be asserted only on the ground that the Independent Counsel so selected does may not meet the requirements of “serve as Independent Counsel” as defined in Section 13 of this Agreement, Counsel unless and the objection shall set forth with particularity the factual basis of until a court has determined that such assertion. If such written objection is made, without merit. Either the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer Company or Indemnitee may petition a court in the State of a written request Maryland for indemnification pursuant to Section 6(a) resolution of this Agreement, no Independent Counsel any such objection which shall have been selected, or if selected made. The party with respect to whom an objection is favorably resolved shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay be paid all reasonable fees and expenses incident to the procedures of this Section 6(c4(c). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 11 of this Agreement, regardless of the manner in which such Independent Counsel was selected or appointedshall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In connection The Company will use its commercially reasonable efforts to conclude as soon as practicable any required determination pursuant to subsection (c) above and promptly will advise Indemnitee in writing with respect to any determination of entitlement to indemnification that Indemnitee is or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. Indemnitee shall cooperate with the Person or Persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such Person or Persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Payment of any applicable Indemnified Amounts will be made to Indemnitee within ten (10) days after any determination of Indemnitee’s entitlement to such payment.
(e) Notwithstanding the burden of proof shall be on foregoing, Indemnitee may, at any time after sixty (60) days after a claim for Indemnified Amounts has been filed with the Company (or its representative upon receipt of written notice that a claim for Indemnified Amounts has been rejected, if earlier) and before three (3) years after a claim for Indemnified Amounts has been filed, petition a court of competent jurisdiction within the State of Maryland to establishdetermine whether Indemnitee is entitled to indemnification under the provisions of this Agreement, and such court shall thereupon have the exclusive authority to make such determination unless and until such court dismisses or otherwise terminates such action without having made such determination. The court shall, as petitioned, make an independent determination of whether Indemnitee is entitled to indemnification as provided under this Agreement, irrespective of any prior determination made by clear the Board or Independent Counsel. If the court shall determine that Indemnitee is entitled to indemnification as to any claim, issue or matter involved in the Proceeding with respect to which there has been no prior determination pursuant to this Agreement or with respect to which there has been a prior determination that Indemnitee was not entitled to indemnification hereunder, the Company shall pay Expenses actually and convincing evidence, that Officer is not so entitledreasonably incurred by Indemnitee in connection with such judicial determination.
Appears in 1 contract
Sources: Indemnification Agreement (Quadra Realty Trust, Inc.)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under Sections 3 or 4 of this Agreement, Officer Indemnitee shall submit a written request to the Company a written requestTrust, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of OfficerIndemnitee may submit one or more such requests from time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsole discretion. The Secretary of the Company Trust shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.. Information Classification: Limited Access
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof: (i) if Indemnitee has been successful, on the merits or otherwise, in defense of the Proceeding at issue (including a decision in an action for which Indemnitee seeks indemnity under this Agreement), then Indemnitee shall be entitled to indemnification for Indemnifiable Amounts, and (ii) if there has been a final non-appealable decision on the merits (including a decision in an action for which Indemnitee seeks indemnity under this Agreement) by a court or other body in the Proceeding at issue or if, at the time of Indemnitee’s written request, there shall have been no final non-appealable decision on the merits by a court or other body, including because the Proceeding at issue has been settled, then Indemnitee shall be entitled to indemnification, for Indemnifiable Amounts, provided that (A) where there has been a final non-appealable decision on the merits, the court or other body adjudicating the Proceeding at issue did not find Indemnitee liable by reason of Disabling Conduct and (B) with respect to the Proceeding at issue, a determination is made that indemnification is permissible under the circumstances because Indemnitee had not engaged in Disabling Conduct in respect of the subject matter of the Proceeding, by (1) the vote of a majority of the Independent Trustees who are not parties to the Proceeding at issue, (2) Independent Counsel in a written opinion, or (3) Trust shareholders. Indemnitee shall be afforded a rebuttable presumption that Indemnitee has not engaged in Disabling Conduct, except no such presumption shall be afforded in those cases where a Proceeding is terminated by conviction, or a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment.
(c) If it is determined that Indemnitee is entitled to indemnification under this Agreement, no Independent Counsel payment to Indemnitee shall have been selectedbe made within 10 business days after such determination. Indemnitee shall cooperate with the person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable request any documentation or if selected shall have been objected toinformation which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Reasonable costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in accordance with this Section 6(c)response to a request by such person, either shall be borne by the Company or Officer may petition the Court of Chancery Trust (irrespective of the State of Delaware for the appointment determination as Independent Counsel of a person selected by such court or by such other person as such court shall designate, to Indemnitee’s entitlement to indemnification) and the person so appointed Trust shall act as Independent Counsel under Section 6(b) of this Agreement, indemnify and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination The Trust shall pay the reasonable fees and expenses of entitlement to indemnification or contribution hereunderIndependent Counsel, the determining party shall presume that Officer has satisfied the applicable standard of conduct and if one is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledappointed.
Appears in 1 contract
Sources: Indemnification Agreement (State Street Institutional Investment Trust)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer the Indemnitee shall submit to the Secretary of the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such requests such documentation and information as is reasonably available to Officer the Indemnitee and is reasonably necessary to determine whether and to what extent Officer the Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsuch Indemnified Amounts. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer the Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay the Indemnitee the appropriate Indemnified Amounts unless it is established that the Indemnitee has not met any applicable standard of conduct set forth in the Charter, the MGCL and the Bylaws or is not otherwise entitled to receive the Indemnified Amounts under this Agreement. For purposes of determining whether the Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to the Indemnitee the Company has the burden of proof in establishing that the Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standards of conduct, provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee did not meet the applicable standard of conduct.
(c) Any determination that the Indemnitee has not met the applicable standard of conduct required to qualify for indemnification or is not otherwise entitled to receive the Indemnified Amounts under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made (i) either by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined)directors who were and are not parties of such Proceeding; or (ii) by Independent Counsel (as hereinafter defineddefined herein below); provided that the manner in which (and, if applicable, the Independent Counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who was and is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as “Senior Officer”) and by Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company especially for such purpose, provided that such counsel be approved in advance in writing by both the said Senior Officer and Indemnitee. The reasonable fees and expenses of this Agreement, the such Independent Counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written notice agreement with respect to Officer advising Officer the payment of its reasonable fees and expenses and such other matters as may be reasonably requested by such counsel. Indemnitee may make a written objection to the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to selected by the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertionCompany. If such written an objection is madeasserted, the Independent Counsel so selected shall be disqualified from acting may not serve as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel unless and until a court has determined that such objection is without merit. Either the Company or Indemnitee may petition a court in the State of Maryland for resolution of any such objection which shall have been selected, or if selected made. The party with respect to whom an objection is favorably resolved shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay be paid all reasonable fees and expenses incident to the procedures of this Section 6(c4(c). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 11 of this Agreement, regardless of the manner in which such Independent Counsel was selected or appointedshall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In connection The Company will use its commercially reasonable efforts to conclude as soon as practicable any required determination pursuant to subparagraph (c) above and promptly will advise the Indemnitee in writing with respect to any determination of entitlement to indemnification that the Indemnitee is or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is not entitled to indemnification, and including a description of any reason or basis for which indemnification has been denied. Indemnitee shall cooperate with the burden of proof shall be on the Company Person or its representative Persons making such determination with respect to establishIndemnitee’s entitlement to indemnification, by clear and convincing evidence, including providing to such Person or Persons upon reasonable advance request any documentation or information that Officer is not so entitledprivileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Payment of any applicable Indemnified Amounts will be made to the Indemnitee within 60 days after any determination of the Indemnitee’s entitlement to such payment.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Secretary of the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such request such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsuch Indemnified Amounts. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay Indemnitee the appropriate Indemnified Amounts unless it is established that Indemnitee has not met any applicable standard of conduct set forth in the Charter, the MGCL or the Bylaws or is not otherwise entitled to receive the Indemnified Amounts under this Agreement. For purposes of determining whether Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to Indemnitee the Company has the burden of proof in establishing that Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that Indemnitee did not meet the requisite standard of conduct; provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that Indemnitee did not meet the applicable standard of conduct.
(c) Any determination that Indemnitee has not met the applicable standard of conduct required to qualify for indemnification or is not otherwise entitled to receive the Indemnified Amounts under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made either (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); directors who were not parties of such Proceeding or (ii) by Independent Counsel (as hereinafter defineddefined below); provided that the manner in which (and, if applicable, the Independent Counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as the “Senior Officer”) and by Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company for such purpose, provided that such counsel is approved in advance in writing by both the Senior Officer and Indemnitee. The reasonable fees and expenses of this Agreement, the such Independent Counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written notice agreement with respect to Officer advising Officer the payment of their reasonable fees and expenses and such other matters as may be reasonably requested by such counsel. Indemnitee may make a written objection to the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to selected by the Company a written objection to such selectionCompany. Such objection may be asserted only on the ground that the Independent Counsel so selected does may not meet the requirements of “serve as Independent Counsel” as defined in Section 13 of this Agreement, Counsel unless and the objection shall set forth with particularity the factual basis of until a court has determined that such assertion. If such written objection is made, without merit. Either the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer Company or Indemnitee may petition a court in the State of a written request Maryland for indemnification pursuant to Section 6(a) resolution of this Agreement, no Independent Counsel any such objection which shall have been selected, or if selected made. The party with respect to whom an objection is favorably resolved shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay be paid all reasonable fees and expenses incident to the procedures of this Section 6(c4(c). Upon the due commencement of any judicial proceeding pursuant to Section 11 of this Agreement, regardless of the manner in which such Independent Counsel was selected or appointedshall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In connection The Company will use its commercially reasonable efforts to conclude as soon as practicable any required determination pursuant to subsection (c) above and promptly will advise Indemnitee in writing with respect to any determination of entitlement to indemnification that Indemnitee is or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. Indemnitee shall cooperate with the Person or Persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such Person or Persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Payment of any applicable Indemnified Amounts will be made to Indemnitee within ten (10) days after any determination of Indemnitee’s entitlement to such payment.
(e) Notwithstanding the burden of proof shall be on foregoing, Indemnitee may, at any time after sixty (60) days after a claim for Indemnified Amounts has been filed with the Company (or its representative upon receipt of written notice that a claim for Indemnified Amounts has been rejected, if earlier) and before three (3) years after a claim for Indemnified Amounts has been filed, petition a court of competent jurisdiction within the State of Maryland to establishdetermine whether Indemnitee is entitled to indemnification under the provisions of this Agreement, and such court shall thereupon have the exclusive authority to make such determination unless and until such court dismisses or otherwise terminates such action without having made such determination. The court shall, as petitioned, make an independent determination of whether Indemnitee is entitled to indemnification as provided under this Agreement, irrespective of any prior determination made by clear the Board or Independent Counsel. If the court shall determine that Indemnitee is entitled to indemnification as to any claim, issue or matter involved in the Proceeding with respect to which there has been no prior determination pursuant to this Agreement or with respect to which there has been a prior determination that Indemnitee was not entitled to indemnification hereunder, the Company shall pay Expenses actually and convincing evidence, that Officer is not so entitledreasonably incurred by Indemnitee in connection with such judicial determination.
Appears in 1 contract
Sources: Indemnification Agreement (Care Investment Trust Inc.)
Procedure for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to Indemnification under this Agreement (provided, however, if the procedures for determination of entitlement to indemnification as currently set forth in the GBCC are amended to create any material inconsistency between such procedures in the GBCC and the procedures set forth below, the procedures set forth below shall also be deemed to be amended in the same manner to the extent necessary to remove the inconsistency without any further action on the part of the Company or Indemnitee):
(a) To obtain indemnification Indemnification under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnificationIndemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Corporate Secretary of the Company (or in the absence of the Corporate Secretary, the Chief Financial Officer of the Company) shall, promptly upon receipt of such a request claim for indemnificationIndemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnificationIndemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for Indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to Indemnification.
(b) Officer’s entitlement to The Company shall not indemnify Indemnitee under Section 1(a) unless a determination has been made for a specific Proceeding that indemnification under any of Sections Indemnitee is permissible because Indemnitee has met the standards set forth in Chapter 2, 3Article 8, and 4Part 5 of the GBCC. Upon written request by the Indemnitee for Indemnification, and the entitlement of Indemnitee to contribution under Section 5, Indemnification pursuant to the terms of this Agreement shall be determined in by the specific case: following person or persons, who shall be empowered to make such determination:
(i) If there are two or more Disinterested Directors, by the Board of Directors by a majority vote of all the Disinterested Directors (a quorum majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more Disinterested Directors appointed by such a vote;
(ii) By special legal counsel (A) selected in the manner prescribed in paragraph (i) of this subsection; or (B) if there are fewer than two Disinterested Directors, selected by the Board of Directors consisting of (in which selection directors who do not qualify as Disinterested Directors (as hereinafter definedmay participate); or
(iii) If consented to by Indemnitee, by the shareholders, but the shares beneficially owned by or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum voted under the control of the Board officers and directors who are at the time parties to the Proceeding may not be voted on the determination; provided, however, that following a Change of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. IfControl, with regard respect to Section 5 all matters thereafter arising out of acts, omissions or events before the Change of Control, upon the request of Indemnitee, any determination concerning the rights of Indemnitee to seek Indemnification under this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination Agreement shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise Independent Counsel. Independent Counsel shall determine as promptly as practicable whether and to what extent Indemnitee is entitled to Indemnification under this Agreement and applicable law and shall render a written opinion to the claim Company and to Indemnitee to such effect. The Company agrees to be bound by, and not contest, appeal or seek reconsideration of, such opinion of Independent Counsel. The Company further agrees to pay the reasonable fees and expenses of Independent Counsel within twenty (20) days after Independent Counsel’s statement for indemnification professional services rendered is broughtsubmitted to the Company, and to fully indemnify Independent Counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Section 6 or its engagement pursuant hereto.
(c) In If the event person, persons or entity empowered or selected under Section 6(b) to determine whether Indemnitee is entitled to Indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to Indemnification shall be deemed to have been made and Indemnitee shall be entitled to such Indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such thirty (30) day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to Indemnification in good faith requires such additional time for the obtaining or evaluating documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(c) shall not apply if the Indemnitee consents to determination of entitlement to indemnification or contribution is to be made by Independent Counsel the shareholders pursuant to Section 6(b6(b)(iii) of this Agreement.
(d) Indemnitee shall reasonably cooperate with the person, the persons or entity making such determination with respect to Indemnitee’s entitlement to Indemnification, including providing to such person, persons or entity upon reasonable advance request such documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by Counsel, members of the Board of Directors, or shareholders of the Company shall act reasonably and in good faith in making a determination under the Agreement of Indemnitee’s entitlement to Indemnification. Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to Indemnification) and the Company shall give written notice hereby indemnifies and agrees to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Sources: Indemnification Agreement (Roberts Realty Investors Inc)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit a written request to the Company for indemnification hereunder. The time at which Indemnitee submits a written requestrequest for indemnification shall be determined by the Indemnitee in the Indemnitee’s sole discretion. Once Indemnitee submits such a written request for indemnification (and only at such time that Indemnitee submits such a written request for indemnification), including such documentation a Determination (as defined by Section 26 of this Agreement) shall thereafter be made, as provided in and information as is reasonably available only to Officer and is reasonably necessary to determine whether and to what the extent Officer is entitled to indemnificationrequired by Section 7(c) of this Agreement. The determination In no event shall a Determination of OfficerIndemnitee’s entitlement to indemnification shall be made not later than 60 days after made, or be required to be made, as a condition to or otherwise in connection with any advancement of Expenses pursuant to Section 9 of this Agreement or, with respect to any Proceeding, to the extent Indemnitee has been successful on the merits or otherwise in such Proceeding. If, at the time of receipt by the Company of the written any such request for indemnification. , the Company has director and officer insurance policies in effect, the Company will promptly notify the relevant insurers in accordance with the procedures and requirements of such policies.
(b) The Secretary of the Company shall, promptly upon receipt of such a request claim for indemnificationindemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtindemnification.
(c) In Upon submission of a written request by the event that the determination of entitlement to Indemnitee for indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c7(a). The Independent Counsel , a Determination shall be selected by the Board of Directors, and the Company made as to Indemnitee’s entitlement to indemnification. Any such Determination shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, be made within seven thirty (30) days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a Indemnitee’s written request for indemnification pursuant to Section 6(a7(a), unless Indemnitee agrees to a longer period, and such Determination shall be made either (i) by a majority of this Agreementthe Disinterested Directors, no even though less than a quorum, so long as Indemnitee does not request that such Determination be made by Independent Counsel, or (ii) if so requested by Indemnitee, in Indemnitee’s sole discretion, by Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either a written opinion to the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of and Indemnitee. If a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume Determination is made that Officer has satisfied the applicable standard of conduct and Indemnitee is entitled to indemnification, and the burden of proof payment to Indemnitee shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.made within ten (10) days after such
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreementhereunder, Officer following a Final Adjudication of the applicable Claim, Indemnitee shall submit to the Company a written requestrequest therefor, including along with such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officerindemnification hereunder; provided, however, that no deficiency in any such request, documentation or information shall adversely affect Indemnitee’s entitlement rights to indemnification shall be made not later than 60 days after receipt by the Company or Advancement of the written request for indemnificationExpenses hereunder. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors and the Reviewing Party in writing that Officer Indemnitee has requested indemnification (or, if the Company does not at that time have a Secretary, the Board shall, promptly upon receipt of such a request for indemnification, advise the Reviewing Party in writing of such request for indemnification).
(b) OfficerUpon a written request by Indemnitee pursuant to the first sentence of Section 4(a) hereof, a determination, if required by the laws of the State of Delaware, with respect to Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement thereto shall be determined in the specific case: (i) made by the Board of Directors by a majority vote of a quorum of Reviewing Party. If the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Reviewing Party is Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directsLegal Counsel, such determination shall be made in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. If it is determined that Indemnitee is entitled to indemnification hereunder, the Company shall make payment to Indemnitee as soon as practicable but in any event no later than 60 days after receiving Indemnitee’s written request for indemnification. Indemnitee shall cooperate with the Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to the Reviewing Party upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure by court order or other similar legal requirement and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs and expenses (including attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the Reviewing Party making such determination shall be borne by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of DirectorsCompany, and the Company shall give written notice hereby agrees to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, indemnify and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To Except in relation to a claim of indemnity under section 4 of this Agreement, to obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement . The Indemnitee shall be determined in conclusively presumed to have met the specific case: relevant standards of conduct required under applicable law for indemnification pursuant to this Agreement, unless a determination is made that the Indemnitee has not met such standards by (i) by the Board of Directors of the Company by a majority vote of a quorum thereof consisting of members who were not parties to such proceeding; (ii) the stockholders of the Board of Directors consisting of Disinterested Directors (as hereinafter defined)Company by a majority vote; or (iiiii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum an order or decree of the Board any court of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtcompetent jurisdiction.
(cb) In The Company shall not be required to obtain the event that consent of Indemnitee to the determination settlement of entitlement any Proceeding the Company has undertaken to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) defend if the Company assumes full and sole responsibility for such settlement and the settlement grants Indemnitee a complete and unqualified release in respect of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c)potential liability. The Independent Counsel Company shall not be selected liable for any amount paid by the Board Indemnitee in settlement of Directorsany Proceeding that is not defended by the Company, and unless the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection has consented to such selection. Such objection may settlement, which consent shall not be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedunreasonably withheld.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain When seeking indemnification under this Agreement, Officer Indemnitee shall submit a written request for indemnification to the Company in the manner contemplated by Section 7 hereof; which request shall include documentation or information which is reasonably necessary for the Company to make a written request, including such documentation good faith determination of Indemnitee’s entitlement to indemnification hereunder and information as which is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnificationIndemnitee. The Such determination of OfficerIndemnitee’s entitlement to indemnification shall be made not later than 60 30 days after receipt by the Company of the Indemnitee’s written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a Indemnitee’s request for indemnification, indemnification advise the Board of Directors in writing that Officer Indemnitee has requested made such request for indemnification.
(b) Officer’s The entitlement of the Indemnitee to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors case by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if . If such a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum such majority vote of Disinterested Directors so directs, such the determination shall be made by the Chancery Court Independent Counsel (as defined below). All fees and expenses of the State of Delaware or Independent Counsel incurred in connection with acting pursuant to this Agreement shall be borne by the court in which the Proceeding giving rise to the claim for indemnification is broughtCompany.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this AgreementCounsel, the Independent Counsel shall be selected as provided in this Section 6(c). The such Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer approved by Indemnitee. Upon failure of the identity of the Board to so select such Independent Counsel or upon failure of Indemnitee to so selected. Officer mayapprove, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if be selected shall have been objected to, in accordance with this Section 6(c), either by the Company or Officer may petition the Court of Chancery Chancellor of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as the Chancellor shall designate to make such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedselection.
(d) In connection with any If such majority of Disinterested Directors or Independent Counsel shall have determined that Indemnitee is not entitled to indemnification to the full extent of Indemnitee’s request, Indemnitee shall have the right to seek a determination of as to his or her entitlement to indemnification or contribution hereunder, in accordance with the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledprocedures set forth in Section 9 hereof.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the facts underlying the Proceeding. To obtain indemnification and/or advancement of Expenses by the Company under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnificationsuch indemnification and/or advancement of Expenses. The determination of Officer’s entitlement failure by Indemnitee to indemnification shall be made not later than 60 days after receipt by notify the Company hereunder shall not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of the written request for indemnificationany rights under this Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for indemnificationindemnification and/or advancement of Expenses, advise the Board of Directors in writing that Officer Indemnitee has requested indemnificationmade such a request.
(b) OfficerThe Company shall be entitled to participate in the Proceeding at its own expense.
(c) Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement thereto shall be determined made in the specific case: (i) if a Change in Control (as hereinafter defined) shall have occurred, by Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee (unless Indemnitee shall request that such determination be made by the Board of Directors or the stockholders, in which case the determination shall be made in the manner provided in Clause (ii) below), or (ii) if a Change in Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); , or (iiB) if there are no such Disinterested Directors or, said Disinterested Directors so direct, by Independent Counsel (as hereinafter defined), in a written opinion if to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (C) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors consisting of Directors, or (D) if so directed by said Disinterested Directors is not obtainable orDirectors, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court stockholders of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification Company; and, if it is brought.
(c) In the event determined that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and Indemnitee is entitled to indemnification, and the burden of proof payment to Indemnitee shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.made within ten (10) days after such
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. The parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to Indemnification under this Agreement (provided, however, in the event the procedures for determination of entitlement to indemnification as currently set forth in the GBCC are amended to create any material inconsistency between such procedures in the GBCC and the procedures set forth below, the procedures set forth below shall also be deemed to be amended in the same manner to the extent necessary to remove the inconsistency without any further action on the part of the Company or Indemnitee):
(a) To obtain indemnification Indemnification under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnificationIndemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Corporate Secretary of the Company (or in the absence of the Corporate Secretary, the Chief Financial Officer of the Company) shall, promptly upon receipt of such a request claim for indemnificationIndemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnificationIndemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for Indemnification hereunder shall be borne by the Company. Subject to Section 10(c)(viii), the Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to Indemnification.
(b) Officer’s entitlement to The Company shall not indemnify Indemnitee under Section 1(a) unless a determination has been made for a specific Proceeding that indemnification under any of Sections Indemnitee is permissible because Indemnitee has met the standards set forth in Chapter 2, 3Article 8, and 4Part 5 of the GBCC. Upon written request by the Indemnitee for Indemnification, and the entitlement of Indemnitee to contribution under Section 5, Indemnification pursuant to the terms of this Agreement shall be determined in by the specific case: following person or persons, who shall be empowered to make such determination:
(i) If there are two or more Disinterested Directors, by the Board of Directors by a majority vote of all the Disinterested Directors (a quorum majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more Disinterested Directors appointed by such a vote;
(ii) By special legal counsel
(A) selected in the manner prescribed in paragraph (i) of this subsection; or
(B) if there are fewer than two Disinterested Directors, selected by the Board of Directors consisting of (in which selection directors who do not qualify as Disinterested Directors (as hereinafter definedmay participate); or
(iii) If consented to by Indemnitee, by the shareholders, but the shares beneficially owned by or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum voted under the control of the Board officers and directors who are at the time parties to the Proceeding may not be voted on the determination; provided, however, that following a Change of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. IfControl, with regard respect to Section 5 all matters thereafter arising out of acts, omissions or events prior to the Change of Control, upon the request of Indemnitee, any determination concerning the rights of Indemnitee to seek Indemnification under this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination Agreement shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise Independent Counsel. Independent Counsel shall determine as promptly as practicable whether and to what extent Indemnitee is entitled to Indemnification under this Agreement and applicable law and shall render a written opinion to the claim Company and to Indemnitee to such effect. The Company agrees to be bound by, and not contest, appeal or seek reconsideration of, such opinion of Independent Counsel. The Company further agrees to pay the reasonable fees and expenses of Independent Counsel within twenty (20) days after Independent Counsel’s statement for indemnification professional services rendered is broughtsubmitted to the Company, and to fully indemnify Independent Counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Section 6 or its engagement pursuant hereto.
(c) In If the event person, persons or entity empowered or selected under Section 6(b) to determine whether Indemnitee is entitled to Indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to Indemnification shall be deemed to have been made and Indemnitee shall be entitled to such Indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such thirty (30) day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to Indemnification in good faith requires such additional time for the obtaining or evaluating documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(c) shall not apply if the Indemnitee consents to determination of entitlement to indemnification or contribution is to be made by Independent Counsel the shareholders pursuant to Section 6(b6(b)(iii) of this Agreement.
(d) Indemnitee shall reasonably cooperate with the person, the persons or entity making such determination with respect to Indemnitee’s entitlement to Indemnification, including providing to such person, persons or entity upon reasonable advance request such documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by Counsel, members of the Board of Directors, or shareholders of the Company shall act reasonably and in good faith in making a determination under the Agreement of Indemnitee’s entitlement to Indemnification. Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to Indemnification) and the Company shall give written notice hereby indemnifies and agrees to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain Whenever Indemnitee believes that he or she is entitled to indemnification under pursuant to this Agreement, Officer Indemnitee shall submit to the Company Corporation a written request, including such documentation and information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary Any request for indemnification shall include sufficient documentation or information reasonably available to Indemnitee to support his or her claim for indemnification, including the undertaking required by Section 3 in the case of a request for reimbursement or advancement of Expenses in advance of the Company final disposition of the applicable Proceeding. Indemnitee shall submit such claim for indemnification within a reasonable time not to exceed one year after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or its equivalent, final termination or other disposition or partial disposition of any Proceeding, whichever is the later date for which Indemnitee requests indemnification. In the case of any request for reimbursement or advancement of Expenses incurred in advance of the final disposition of a Proceeding other than a Proceeding that Indemnitee initiated as a plaintiff, or in the case of a request for reimbursement or advancement of Expenses as a witness as provided in Section 2, the Chairman of the Board, the President or the Secretary or other appropriate officer shall cause the Corporation to honor such request if such officer determines that the amounts requested have been or will be actually and reasonably incurred. In the case of any other request, the Chairman of the Board, the President or the Secretary or other appropriate officer shall, promptly upon receipt of such a Indemnitee's request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnificationmade such request. Determination of Indemnitee's entitlement to indemnification as set forth in such written request shall be made in accordance with the remaining provisions of this Section 5.
(b) Officer’s entitlement If the indemnification request relates to indemnification under any reimbursement or advancement of Sections 2Expenses incurred or to be incurred in advance of the final disposition of a Proceeding that Indemnitee initiated as a plaintiff, 3, and 4, and the determination whether to contribution under Section 5, of this Agreement honor such request (unless ordered by a court) shall be determined in made, not later than ninety (90) days after the specific case: (i) by Corporation's receipt of the Board of Directors written request for indemnification, by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined)or, in a written opinion if a quorum of the Board of Directors consisting of there are no Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum majority of Disinterested Directors so directs, by Independent Legal Counsel in a written opinion. The person or persons making such decision may require that the Indemnitee furnish to the Corporation evidence of financial ability of Indemnitee to make a repayment contemplated by Section 3 or security for such repayment.
(c) If the indemnification request relates to any other matter, the determination whether to honor such request (unless ordered by a court) shall be made, not later than ninety (90) days after the Corporation's receipt of the written request for indemnification, by a majority vote of the Disinterested Directors or, if there are no Disinterested Directors or if a majority of Disinterested Directors so directs, by Independent Legal Counsel in a written opinion.
(d) Unless otherwise provided by applicable law, in any Proceeding to enforce a right to indemnification under this Agreement, the Corporation shall have the burden of proving that the Indemnitee is not entitled to indemnification, and there shall be a rebuttable presumption that the Indemnitee is entitled to indemnification hereunder.
(e) Notwithstanding any other provision of this Agreement, no indemnification shall be made by in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Chancery Corporation unless and only to the extent that the Court of the State Chancery of Delaware or the court in which the applicable Proceeding giving rise to was brought shall determine upon application that, despite the claim for indemnification is brought.
(c) In adjudication of liability but in view of all the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer circumstances of the identity of the Independent Counsel so selected. Officer maycase, within seven days after receipt of Indemnitee is fairly and reasonably entitled to indemnity for such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition Expenses which the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointeddeem proper.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain Whenever Indemnitee believes that Indemnitee is entitled to indemnification pursuant to this Agreement, Indemnitee shall submit a written request for indemnification to the Corporation. The Corporation's obligation to comply with such request for indemnification is subject to the condition that the matter of the Indemnitee's entitlement to such indemnification under applicable law has been heard before a forum referred to in Section 5(b) below and such forum shall not have determined that the Indemnitee did not meet the required standard of conduct under applicable law; provided, however, that such condition shall not be applicable (and no such hearing or determination shall be required) (i) where indemnification is mandatory under applicable law, (ii) with respect to any request for indemnification by an Indemnitee under Section 3(b) or (iii) in any case in which such determination is, by the express terms of this Agreement (including but not limited to Section 4 hereof), deemed to have been made or is otherwise not required to be made under this Agreement, Officer shall submit and in each such case payment of indemnification to the Company a written request, including such documentation and information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer which an Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer has requested indemnification.
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made within thirty (i30) days after such request is received by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directsCorporation. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim Any request for indemnification is brought.
(c) In the event that shall include sufficient documentation or information reasonably available to Indemnitee for the determination of entitlement to indemnification. In any event, Indemnitee shall submit Indemnitee's claim for indemnification or contribution is within a reasonable time, not to be made by Independent Counsel pursuant to Section 6(bexceed five (5) of this Agreementyears after any judgment, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directorsorder, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer maysettlement, within seven days after receipt of such written notice of selection shall have been givendismissal, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreementarbitration award, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is madeconviction, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer acceptance of a written request for indemnification pursuant to Section 6(a) plea of this Agreement, no Independent Counsel shall have been selectednolo contendere or its equivalent, or if selected shall have been objected tofinal determination, in accordance with this Section 6(c), either whichever is the Company or Officer may petition the Court of Chancery of the State of Delaware later date for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.Indemnitee requests
Appears in 1 contract
Sources: Indemnification Agreement (Advanced Fibre Communications Inc)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a), a determination, if required by applicable law, with respect to Indemnitee's entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement thereto shall be determined made in the specific case: (i) by , unless Indemnitee and the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) Company agree otherwise, by Independent Counsel (as hereinafter defined), ) in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, if a quorum of it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within 10 days after such determination. Indemnitee shall cooperate with the Board of Directors consisting of Disinterested Directors person, persons or firm making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or firm upon reasonable advance request any documentation or information that is not obtainable orprivileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with the person, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law persons or if a quorum of Disinterested Directors so directs, firm making such determination shall be made paid by the Chancery Court Company (irrespective of the State of Delaware or determination as to Indemnitee's entitlement to indemnification) and the court in which the Proceeding giving rise Company hereby indemnifies and agrees to the claim for indemnification is broughthold Indemnitee harmless therefrom.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by The Independent Counsel pursuant referred to in Section 6(b8(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c8(c). The Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Officer Indemnitee advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven Within 10 days after receipt of such written notice of selection shall have been given, Indemnitee may deliver to the Company a written objection to such selection. Such ; provided that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 13 of this Agreement17, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a) of this Agreement8(a), no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition the Court of Chancery of the State of Delaware or other court of competent jurisdiction for resolution of any objection that shall have been made by Indemnitee to the Company's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court the Court or by such other person as such court the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall then act as Independent Counsel under Section 6(b) 8(b). Upon the due commencement of this Agreementany judicial proceeding or arbitration pursuant to Section 10(a), Independent Counsel shall be discharged and the Company shall pay all reasonable fees and expenses incident relieved of any further responsibility in such capacity (subject to the procedures applicable standards of this Section 6(cprofessional conduct then prevailing), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit a written request for indemnification hereunder. The time at which Indemnitee submits a written request for indemnification shall be determined by the Indemnitee in the Indemnitee’s sole discretion. Once Indemnitee submits such a written request for indemnification (and only at such time that Indemnitee submits such a written request for indemnification), a Determination (as defined by Section 23 of this Agreement) shall thereafter be made, as provided in and only to the Company extent required by Section 5(c) of this Agreement. In no event shall a written request, including such documentation and information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnification. The determination Determination of OfficerIndemnitee’s entitlement to indemnification shall be made not later than 60 days after made, or be required to be made, as a condition to or otherwise in connection with any advancement of Expenses pursuant to Section 7 of this Agreement or, with respect to any Proceeding, to the extent Indemnitee has been successful on the merits or otherwise in such Proceeding. If, at the time of receipt by the Company of the written any such request for indemnification. , the Company has director and officer insurance policies in effect, the Company will promptly notify the relevant insurers in accordance with the procedures and requirements of such policies.
(b) The Secretary of the Company shall, promptly upon receipt of such a request claim for indemnificationindemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtindemnification.
(c) In Upon submission of a written request by the event that the determination of Indemnitee for indemnification as provided in Section 5(a), a Determination shall be made as to Indemnitee’s entitlement to indemnification. Any such Determination shall be made within thirty (30) days after receipt of Indemnitee’s written request for indemnification or contribution is pursuant to Section 5(a), unless Indemnitee agrees to a longer period, and such Determination shall be made either (i) by a majority of the Disinterested Directors, so long as Indemnitee does not request that such Determination be made by Independent Counsel, or (ii) if so requested by Indemnitee, in Indemnitee’s sole discretion, by Independent Counsel pursuant in a written opinion to Section 6(bthe Company and Indemnitee. If a Determination is made that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) days after such Determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such Determination. Any Expenses incurred by Indemnitee in so cooperating shall be advanced and borne by the Company (irrespective of the Determination as to Indemnitee’s entitlement to indemnification) and the Company is liable to indemnify and hold Indemnitee harmless therefrom. If the person, persons or entity making such Determination shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of this Agreementthe application for indemnification, such person, persons or entity shall reasonably prorate such part of indemnification among such claims, issues or matters.
(d) In the event Indemnitee requests that the Determination be made by Independent Counsel shall be selected as provided in this Section 6(c). The Counsel, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection by made by the Board of Directors, in which event the Board of Directors shall make such selection on behalf of the Company, subject to the remaining provisions of this Section 5(d)), and Indemnitee or the Company Company, as the case may be, shall give written notice to Officer the other, advising Officer the Company or Indemnitee of the identity of the Independent Counsel so selected. Officer The Company or Indemnitee, as the case may be, may, within seven ten (10) days after receipt of such written notice of selection shall have been givenreceived, deliver to Indemnitee or the Company Company, as the case may be, a written objection to such selection. Such ; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 23 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such a written objection is madeso made and substantiated, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a5(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Court Company or Indemnitee to the other’s selection of Chancery of the State of Delaware Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such the court or by such other person as such the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and . Any expenses incurred by Independent Counsel shall be borne by the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless (irrespective of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination Determination of Indemnitee’s entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct indemnification) and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, not by clear and convincing evidence, that Officer is not so entitledIndemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Cellu Tissue Holdings, Inc.)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a), a determination, if required by applicable law, with respect to Indemnitee's entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement thereto shall be determined made in the specific case: (i) by , unless Indemnitee and the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) Company agree otherwise, by Independent Counsel (as hereinafter defined), ) in a written opinion if a quorum of to the Board of Directors consisting Directors, a copy of Disinterested Directors which shall be delivered to Indemnitee; and, if it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within 10 days after such determination. Indemnitee shall cooperate with the person, persons or firm making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or firm upon reasonable advance request any documentation or information that is not obtainable orprivileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with the person, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law persons or if a quorum of Disinterested Directors so directs, firm making such determination shall be made paid by the Chancery Court Company (irrespective of the State of Delaware or determination as to Indemnitee's entitlement to indemnification) and the court in which the Proceeding giving rise Company hereby indemnifies and agrees to the claim for indemnification is broughthold Indemnitee harmless therefrom.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by The Independent Counsel pursuant referred to in Section 6(b8(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c8(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer Indemnitee advising Officer him of the identity of the Independent Counsel so selected. Officer may, within seven Within 10 days after receipt of such written notice of selection shall have been given, Indemnitee may deliver to the Company a written objection to such selection. Such ; provided that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 13 of this Agreement17, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a) of this Agreement8(a), no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition the District Court of Chancery of the State of Delaware Colorado or other court of competent jurisdiction for resolution of any objection that shall have been made by Indemnitee to the Company's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court the Court or by such other person as such court the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall then act as Independent Counsel under Section 6(b) 8(b). Upon the due commencement of this Agreementany judicial proceeding or arbitration pursuant to Section 10(a), Independent Counsel shall be discharged and the Company shall pay all reasonable fees and expenses incident relieved of any further responsibility in such capacity (subject to the procedures applicable standards of this Section 6(cprofessional conduct then prevailing), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitled.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit to the Secretary of the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such request such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsuch Indemnified Amounts. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay Indemnitee the appropriate Indemnified Amounts unless it is established that Indemnitee has not met any applicable standard of conduct set forth in the Charter, the Bylaws or Maryland law or is not otherwise entitled to receive the Indemnified Amounts under this Agreement. For purposes of determining whether Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to Indemnitee the Company has the burden of proof in establishing that Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that Indemnitee did not meet the requisite standard of conduct; provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that Indemnitee did not meet the applicable standard of conduct.
(c) Any determination that Indemnitee has not met the applicable standard of conduct required to qualify for indemnification or is not otherwise entitled to receive the Indemnified Amounts under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made either (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); directors who were not parties of such Proceeding or (ii) by Independent Counsel (as hereinafter defineddefined below); provided that the manner in which (and, if applicable, the Independent Counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as the “Senior Officer”) and by Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company for such purpose, provided that such counsel is approved in advance in writing by both the Senior Officer and Indemnitee. The reasonable fees and expenses of this Agreement, the such Independent Counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written notice agreement with respect to Officer advising Officer the payment of their reasonable fees and expenses and such other matters as may be reasonably requested by such counsel. Indemnitee may make a written objection to the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to selected by the Company a written objection to such selectionCompany. Such objection may be asserted only on the ground that the Independent Counsel so selected does may not meet the requirements of “serve as Independent Counsel” as defined in Section 13 of this Agreement, Counsel unless and the objection shall set forth with particularity the factual basis of until a court has determined that such assertion. If such written objection is made, without merit. Either the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer Company or Indemnitee may petition a court in the State of a written request Maryland for indemnification pursuant to Section 6(a) resolution of this Agreement, no Independent Counsel any such objection which shall have been selected, or if selected made. The party with respect to whom an objection is favorably resolved shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay be paid all reasonable fees and expenses incident to the procedures of this Section 6(c4(c). Upon the due commencement of any judicial proceeding pursuant to Section 11 of this Agreement, regardless of the manner in which such Independent Counsel was selected or appointedshall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In connection The Company will use its commercially reasonable efforts to conclude as soon as practicable any required determination pursuant to subsection (c) above and promptly will advise Indemnitee in writing with respect to any determination of entitlement to indemnification that Indemnitee is or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. Indemnitee shall cooperate with the Person or Persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such Person or Persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Payment of any applicable Indemnified Amounts will be made to Indemnitee within ten (10) days after any determination of Indemnitee’s entitlement to such payment.
(e) Notwithstanding the burden of proof shall be on foregoing, Indemnitee may, at any time after sixty (60) days after a claim for Indemnified Amounts has been filed with the Company (or its representative upon receipt of written notice that a claim for Indemnified Amounts has been rejected, if earlier) and before three (3) years after a claim for Indemnified Amounts has been filed, petition a court of competent jurisdiction within the State of Maryland to establishdetermine whether Indemnitee is entitled to indemnification under the provisions of this Agreement, and such court shall thereupon have the exclusive authority to make such determination unless and until such court dismisses or otherwise terminates such action without having made such determination. The court shall, as petitioned, make an independent determination of whether Indemnitee is entitled to indemnification as provided under this Agreement, irrespective of any prior determination made by clear the Board or Independent Counsel. If the court shall determine that Indemnitee is entitled to indemnification as to any claim, issue or matter involved in the Proceeding with respect to which there has been no prior determination pursuant to this Agreement or with respect to which there has been a prior determination that Indemnitee was not entitled to indemnification hereunder, the Company shall pay Expenses actually and convincing evidence, that Officer is not so entitledreasonably incurred by Indemnitee in connection with such judicial determination.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain When seeking indemnification under this AgreementAgreement (which shall not include in any case the right of Indemnitee to receive indemnification pursuant to Section 6 or payments pursuant to Section 7 and Section 8 hereof, Officer which shall not be subject to this Section 9), Indemnitee shall submit a written request for indemnification to the Company a written Company. If, at the time of the receipt of such request, including the Company has directors' and officers' liability insurance in effect under which coverage for such Proceeding or Loss is potentially available, the Company shall give prompt written notice of such Proceeding or Loss to the applicable insurers in accordance with the procedures set forth in the applicable policies. The Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company and such insurers regarding the Proceeding or Loss, in each case substantially concurrently with the delivery or receipt thereof by the Company. Such request shall include documentation or information which is reasonably necessary for the Company to make a determination of Indemnitee's entitlement to indemnification hereunder and information as which is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnificationIndemnitee. The determination Determination of Officer’s Indemnitee's entitlement to indemnification shall be made not promptly, but in no event later than 60 days after receipt by the Company of the Indemnitee's written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a Indemnitee's request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested made such request for indemnification.
(b) Officer’s The entitlement of Indemnitee to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement in respect of any Proceeding shall be determined in the specific case: as follows:
(i) if a Change in Control shall not have occurred, or if a Change in Control shall have occurred but Indemnitee shall have requested that the determination be made pursuant to this clause (i), (A) by a majority vote of the Board Disinterested Directors, even if less than a quorum of the Board, (B) if such Disinterested Directors so direct, by a majority vote of a quorum of the Board of Directors consisting committee of Disinterested Directors (as hereinafter defined); designated by a majority vote of all Disinterested Directors, or (iiC) if there are no such Disinterested Directors, by Independent Counsel (as hereinafter defined), in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and (ii) if a quorum Change in Control shall have occurred and Indemnitee shall not have requested that the determination be made pursuant to clause (i), by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. Indemnitee will cooperate with the Board of Directors consisting of Disinterested Directors person or persons making such determination, including providing to such person or persons, upon reasonable advance request, any documentation or information which is not obtainable orprivileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company shall indemnify and hold harmless Indemnitee against and, even if obtainablerequested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five (5) business days of such quorum of Disinterested Directors request, any and all costs and expenses (including attorneys' and experts' fees and expenses) incurred by Indemnitee in so directscooperating with the person or persons making such determination. IfThe person, with regard persons or entity chosen to Section 5 of this Agreement, make the determination will act reasonably and in good faith in making such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtdetermination.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this AgreementCounsel, the Independent Counsel shall be selected as provided in this Section 6(c). The such Independent Counsel shall be selected by the Board and approved by Indemnitee. Upon failure of Directors, the Board and the Company shall give written notice Board of Directors to Officer advising Officer of the identity of the so select such Independent Counsel or upon failure of Indemnitee to so selected. Officer mayapprove, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel shall have been selected, or if be selected shall have been objected to, in accordance with this Section 6(c), either by the Company or Officer may petition the Court of Chancery President of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedNew York County Lawyer’s Association.
(d) In connection If the determination made pursuant to Section 9(b) is that Indemnitee is not entitled to indemnification to the full extent of Indemnitee's request, Indemnitee shall have the right to seek entitlement to indemnification in accordance with any the procedures set forth in Section 10 hereof.
(e) If the person or persons empowered pursuant to Section 9(b) hereof to make a determination with respect to entitlement to indemnification shall have failed to make the requested determination within 60 days after receipt by the Company of such request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) misrepresentation by Indemnitee of a material fact in the request for indemnification or contribution (ii) a final judicial determination that all or any part of such indemnification is expressly prohibited by law.
(f) The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, adversely affect the rights of Indemnitee to indemnification hereunder, except as may be specifically provided herein, or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the determining party best interests of the Company or create a presumption that (with respect to any criminal action or Proceeding) Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.
(g) For purposes of any determination of good faith hereunder, Indemnitee shall presume that Officer has satisfied be deemed to have acted in good faith if in taking an action Indemnitee relied on the records or books of account of the Company or an Affiliate, including financial statements, or on information supplied to Indemnitee by the officers of the Company or an Affiliate in the course of their duties, or on the advice of legal counsel for the Company or an Affiliate or on information or records given or reports made to the Company or an Affiliate by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or an Affiliate. The Company shall have the burden of establishing the absence of good faith. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct and set forth in this Agreement.
(h) The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or an Affiliate shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
(i) If the determination has been made that the Indemnitee is entitled to indemnificationIndemnification under this Agreement and if, (and for so long as), the interests of the Company, as determined in good faith by the Board of Directors and confirmed by Independent Counsel, are not in conflict the legal representation of the Indemnitee shall be controlled and undertaken by the Company and the burden of proof Indemnitee shall be on entitled to retain other counsel to participate in such proceedings only at his or her own expense; provided, however that the Company or its representative shall be responsible for the legal fees and other costs incurred by the Indemnitee if and to establish, by clear and convincing evidence, the extent it subsequently is determined that Officer a conflict exists such that counsel for the Company is not so entitledable to represent both the Company and the Indemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Organic Plant Health Inc.)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under Sections 3 or 4 of this Agreement, Officer Indemnitee shall submit a written request to the Company a written requestCompany, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of OfficerIndemnitee may submit one or more such requests from time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsole discretion. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof: (i) if Indemnitee has been successful, on the merits or otherwise, in defense of the Proceeding at issue (including a decision in an action for which Indemnitee seeks indemnity under this Agreement), then Indemnitee shall be entitled to indemnification for Indemnifiable Amounts, and (ii) if there has been a final non-appealable decision on the merits (including a decision in an action for which Indemnitee seeks indemnity under this Agreement) by a court or other body in the Proceeding at issue or if, at the time of Indemnitee’s written request, there shall have been no final non-appealable decision on the merits by a court or other body, including because the Proceeding at issue has been settled, then Indemnitee shall be entitled to indemnification, for Indemnifiable Amounts, provided that (A) where there has been a final non-appealable decision on the merits, the court or other body adjudicating the Proceeding at issue did not find Indemnitee liable by reason of Disabling Conduct and (B) with respect to the Proceeding at issue, a determination is made that indemnification is permissible under the circumstances because ▇▇▇▇▇▇▇▇▇▇ had not engaged in Disabling Conduct in respect of the subject matter of the Proceeding, by (1) the vote of a majority of the Independent Directors who are not parties to the Proceeding at issue if there are two or more such Independent Directors, (2) Independent Counsel selected pursuant to Section 13.1-701 in a written opinion, or (3) Company shareholders excluding any votes held by a Director who does not qualify as a disinterested director under the VSCA. Indemnitee shall be afforded a rebuttable presumption that Indemnitee has not engaged in Disabling Conduct, except no such presumption shall be afforded in those cases where a Proceeding is terminated by conviction, or a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment.
(c) If it is determined that Indemnitee is entitled to indemnification under this Agreement, no Independent Counsel payment to Indemnitee shall have been selectedbe made within 10 business days after such determination. Indemnitee shall cooperate with the person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable request any documentation or if selected shall have been objected toinformation which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Reasonable costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in accordance with this Section 6(c)response to a request by such person, either shall be borne by the Company or Officer may petition the Court of Chancery (irrespective of the State of Delaware for the appointment determination as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(bto Indemnitee’s entitlement to indemnification) of this Agreement, and the Company shall pay all reasonable fees indemnify and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination The Company shall pay the reasonable fees and expenses of entitlement to indemnification or contribution hereunderIndependent Counsel, the determining party shall presume that Officer has satisfied the applicable standard of conduct and if one is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledappointed.
Appears in 1 contract
Sources: Indemnification Agreement (State Street Variable Insurance Series Funds Inc)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer the Indemnitee shall submit to the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such requests such documentation and information as is reasonably available to Officer the Indemnitee and is reasonably necessary to determine whether and to what extent Officer the Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer the Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay the Indemnitee the appropriate Indemnified Amounts unless it is established that the Indemnitee has not met any applicable standard of conduct set forth in the Charter, MGCL, the Maryland Statute and By-laws. For purposes of determining whether the Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification under to the Indemnitee the Company has the burden of proof in establishing that the Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of Sections 2conduct; provided, 3however, and 4that the termination of any criminal proceeding by conviction, and or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to contribution under Section 5judgment, creates a rebuttable presumption that the Indemnitee did not meet the applicable standard of this Agreement conduct.
(c) Any determination that the Indemnitee has not met the applicable standard of conduct required to qualify for indemnification shall be determined in the specific case: made (i) either by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined)directors who were not parties of such action, suit or proceeding; or (ii) by Independent Counsel (as hereinafter defineddefined herein below); provided that the manner in which (and, if applicable, the counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as "Senior Officer") and by the Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company especially for such purpose, provided that such counsel be approved in advance in writing by both the said Senior Officer and the Indemnitee. The fees and expenses of this Agreement, the Independent Counsel counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written agreement with respect to the payment of their fees and expenses and such other matters as may be reasonably requested by counsel.
(d) The Company will use its best efforts to conclude as soon as practicable any required determination pursuant to subparagraph (c) above and promptly will advise the Indemnitee in writing with respect to any determination that the Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. Payment of any applicable Indemnified Amounts will be made to the Indemnitee within ten (10) days after any determination of the Indemnitee's entitlement to indemnification.
(e) Notwithstanding the foregoing, the Indemnitee may, at any time after sixty (60) days after a claim for Indemnified Amounts has been filed with the Company (or upon receipt of written notice that a claim for Indemnified Amounts has been rejected, if earlier) and before three (3) years after a claim for Indemnified Amounts has been filed, petition a court of competent jurisdiction to Officer advising Officer of determine whether the identity of Indemnitee is entitled to indemnification under the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 provisions of this Agreement, and such court shall thereupon have the objection shall set forth with particularity exclusive authority to make such determination unless and until such court dismisses or otherwise terminates such action without having made such determination. The court shall, as petitioned, make an independent determination of whether the factual basis of such assertion. If such written objection Indemnitee is made, the Independent Counsel so selected shall be disqualified from acting entitled to indemnification as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of provided under this Agreement, no Independent Counsel shall have been selected, irrespective of any prior determination made by the Board of Directors or if selected shall have been objected to, in accordance with this Section 6(c), either independent counsel. If the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designatedetermine that the Indemnitee is entitled to indemnification as to any claim, and issue or matter involved in the person so appointed shall act as Independent Counsel under Section 6(b) of Proceeding with respect to which there has been no prior determination pursuant to this AgreementAgreement or with respect to which there has been a prior determination that the Indemnitee was not entitled to indemnification hereunder, and the Company shall pay all reasonable expenses (including attorneys' fees and expenses incident to disbursements) actually incurred by the procedures of this Section 6(c), regardless of the manner Indemnitee in which such Independent Counsel was selected or appointed.
(d) In connection with any determination of entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledsuch judicial determination.
Appears in 1 contract
Sources: Indemnification Agreement (Telecommunication Systems Inc /Fa/)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer the Indemnitee shall submit to the Secretary of the Company a written requestrequest for payment of the appropriate Indemnified Amounts, including with such requests such documentation and information as is reasonably available to Officer the Indemnitee and is reasonably necessary to determine whether and to what extent Officer the Indemnitee is entitled to indemnification. The determination of Officer’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsuch Indemnified Amounts. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer the Indemnitee has requested indemnification.
(b) Officer’s entitlement The Company shall pay the Indemnitee the appropriate Indemnified Amounts unless it is established that the Indemnitee has not met any applicable standard of conduct set forth in the Charter, the MGCL and the Bylaws or is not otherwise entitled to receive the Indemnified Amounts under this Agreement. For purposes of determining whether the Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to the Indemnitee the Company has the burden of proof in establishing that the Indemnitee did not meet the applicable standard of conduct. In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standards of conduct, provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee did not meet the applicable standard of conduct.
(c) Any determination that the Indemnitee has not met the applicable standard of conduct required to qualify for indemnification or is not otherwise entitled to receive the Indemnified Amounts under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: made (i) either by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined)directors who were not parties of such Proceeding; or (ii) by Independent Counsel (as hereinafter defineddefined herein below); provided that the manner in which (and, if applicable, the Independent Counsel by which) the right to indemnification is to be determined shall be approved in a written opinion if a quorum advance in writing by both the highest ranking executive officer of the Board of Directors consisting of Disinterested Directors Company who is not obtainable or, even if obtainable, party to such quorum of Disinterested Directors so directsaction (sometimes hereinafter referred to as “Senior Officer”) and by the Indemnitee. If, with regard In the event that such parties are unable to Section 5 of this Agreement, agree on the manner in which any such a determination is not permitted by law or if a quorum of Disinterested Directors so directsto be made, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) retained by the Company especially for such purpose, provided that such counsel be approved in advance in writing by both the said Senior Officer and the Indemnitee. The reasonable fees and expenses of this Agreement, the such Independent Counsel in connection with making said determination contemplated hereunder shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected paid by the Board of DirectorsCompany, and and, if requested by such counsel, the Company shall give such counsel an appropriate written notice agreement with respect to Officer advising Officer the payment of their reasonable fees and expenses and such other matters as may be reasonably requested by such counsel. Indemnitee may make a written objection to the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to selected by the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertionCompany. If such written an objection is madeasserted, the Independent Counsel so selected shall be disqualified from acting may not serve as such. If, within 20 days after submission by Officer of a written request for indemnification pursuant to Section 6(a) of this Agreement, no Independent Counsel unless and until a court has determined that such objection is without merit. Either the Company or Indemnitee may petition a court in the State of Maryland for resolution of any such objection which shall have been selected, or if selected made. The party with respect to whom an objection is favorably resolved shall have been objected to, in accordance with this Section 6(c), either the Company or Officer may petition the Court of Chancery of the State of Delaware for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and the Company shall pay be paid all reasonable fees and expenses incident to the procedures of this Section 6(c4(c). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 11 of this Agreement, regardless of the manner in which such Independent Counsel was selected or appointedshall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) In connection The Company will use its commercially reasonable efforts to conclude as soon as practicable any required determination pursuant to subparagraph (c) above and promptly will advise the Indemnitee in writing with respect to any determination of entitlement to indemnification that the Indemnitee is or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct and is not entitled to indemnification, and including a description of any reason or basis for which indemnification has been denied. Indemnitee shall cooperate with the burden of proof shall be on the Company Person or its representative Persons making such determination with respect to establishIndemnitee’s entitlement to indemnification, by clear and convincing evidence, including providing to such Person or Persons upon reasonable advance request any documentation or information that Officer is not so entitledprivileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Payment of any applicable Indemnified Amounts will be made to the Indemnitee within 20 days after any determination of the Indemnitee’s entitlement to such payment.
Appears in 1 contract
Sources: Indemnification Agreement (Monogram Residential Trust, Inc.)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under Sections 3 or 4 of this Agreement, Officer Indemnitee shall submit a written request to the Company a written requestTrust, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of OfficerIndemnitee may submit one or more such requests from time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsole discretion. The Secretary of the Company Trust shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof: (i) if Indemnitee has been successful, on the merits or otherwise, in defense of the Proceeding at issue (including a decision in an action for which Indemnitee seeks indemnity under this Agreement), then Indemnitee shall be entitled to indemnification for Indemnifiable Amounts, and (ii) if there has been a final non-appealable decision on the merits (including a decision in an action for which Indemnitee seeks indemnity under this Agreement) by a court or other body in the Proceeding at issue or if, at the time of Indemnitee’s written request, there shall have been no final non-appealable decision on the merits by a court or other body, including because the Proceeding at issue has been settled, then Indemnitee shall be entitled to indemnification, for Indemnifiable Amounts, provided that (A) where there has been a final non-appealable decision on the merits, the court or other body adjudicating the Proceeding at issue did not find Indemnitee liable by reason of Disabling Conduct and (B) with respect to the Proceeding at issue, a determination is made that indemnification is permissible under the circumstances because Indemnitee had not engaged in Disabling Conduct in respect of the subject matter of the Proceeding, by (1) the vote of a majority of the Independent Trustees who are not parties to the Proceeding at issue, (2) Independent Counsel in a written opinion, or (3) Trust shareholders. Indemnitee shall be afforded a rebuttable presumption that Indemnitee has not engaged in Disabling Conduct, except no such presumption shall be afforded in those cases where a Proceeding is terminated by conviction, or a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment.
(c) If it is determined that Indemnitee is entitled to indemnification under this Agreement, no Independent Counsel payment to Indemnitee shall have been selectedbe made within 10 business days after such determination. Information Classification: Limited Access Indemnitee shall cooperate with the person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable request any documentation or if selected shall have been objected toinformation which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Reasonable costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in accordance with this Section 6(c)response to a request by such person, either shall be borne by the Company or Officer may petition the Court of Chancery Trust (irrespective of the State of Delaware for the appointment determination as Independent Counsel of a person selected by such court or by such other person as such court shall designate, to Indemnitee’s entitlement to indemnification) and the person so appointed Trust shall act as Independent Counsel under Section 6(b) of this Agreement, indemnify and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination The Trust shall pay the reasonable fees and expenses of entitlement to indemnification or contribution hereunderIndependent Counsel, the determining party shall presume that Officer has satisfied the applicable standard of conduct and if one is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledappointed.
Appears in 1 contract
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under Sections 3 or 4 of this Agreement, Officer Indemnitee shall submit a written request to the Company a written requestTrust, including therein or therewith such documentation and information as is reasonably available to Officer Indemnitee and is reasonably necessary to determine whether and to what extent Officer Indemnitee is entitled to indemnification. The determination of OfficerIndemnitee may submit one or more such requests from time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s entitlement to indemnification shall be made not later than 60 days after receipt by the Company of the written request for indemnificationsole discretion. The Secretary of the Company Trust shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification or contribution is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Officer advising Officer of the identity of the Independent Counsel so selected. Officer may, within seven days after receipt of such written notice of selection shall have been given, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected shall be disqualified from acting as such. If, within 20 days after submission by Officer of a Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof: (i) if Indemnitee has been successful, on the merits or otherwise, in defense of the Proceeding at issue (including a decision in an action for which Indemnitee seeks indemnity under this Agreement), then Indemnitee shall be entitled to indemnification for Indemnifiable Amounts, and (ii) if there has been a final non-appealable decision on the merits (including a decision in an action for which Indemnitee Information Classification: Limited Access seeks indemnity under this Agreement) by a court or other body in the Proceeding at issue or if, at the time of Indemnitee’s written request, there shall have been no final non-appealable decision on the merits by a court or other body, including because the Proceeding at issue has been settled, then Indemnitee shall be entitled to indemnification, for Indemnifiable Amounts, provided that (A) where there has been a final non-appealable decision on the merits, the court or other body adjudicating the Proceeding at issue did not find Indemnitee liable by reason of Disabling Conduct and (B) with respect to the Proceeding at issue, a determination is made that indemnification is permissible under the circumstances because Indemnitee had not engaged in Disabling Conduct in respect of the subject matter of the Proceeding, by (1) the vote of a majority of the Independent Trustees who are not parties to the Proceeding at issue, (2) Independent Counsel in a written opinion, or (3) Trust shareholders. Indemnitee shall be afforded a rebuttable presumption that Indemnitee has not engaged in Disabling Conduct, except no such presumption shall be afforded in those cases where a Proceeding is terminated by conviction, or a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment.
(c) If it is determined that Indemnitee is entitled to indemnification under this Agreement, no Independent Counsel payment to Indemnitee shall have been selectedbe made within 10 business days after such determination. Indemnitee shall cooperate with the person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable request any documentation or if selected shall have been objected toinformation which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Reasonable costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in accordance with this Section 6(c)response to a request by such person, either shall be borne by the Company or Officer may petition the Court of Chancery Trust (irrespective of the State of Delaware for the appointment determination as Independent Counsel of a person selected by such court or by such other person as such court shall designate, to Indemnitee’s entitlement to indemnification) and the person so appointed Trust shall act as Independent Counsel under Section 6(b) of this Agreement, indemnify and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointedhold Indemnitee harmless therefrom.
(d) In connection with any determination The Trust shall pay the reasonable fees and expenses of entitlement to indemnification or contribution hereunderIndependent Counsel, the determining party shall presume that Officer has satisfied the applicable standard of conduct and if one is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, by clear and convincing evidence, that Officer is not so entitledappointed.
Appears in 1 contract
Sources: Indemnification Agreement (State Street Institutional Funds)
Procedure for Determination of Entitlement to Indemnification. (a) To obtain indemnification under this Agreement, Officer Indemnitee shall submit a written request for indemnification hereunder. The time at which Indemnitee submits a written request for indemnification shall be determined by the Indemnitee in the Indemnitee’s sole discretion. Once Indemnitee submits such a written request for indemnification (and only at such time that Indemnitee submits such a written request for indemnification), a Determination (as defined by Section 22 of this Agreement) shall thereafter be made, as provided in and only to the Company extent required by Section 5(c) of this Agreement. In no event shall a written request, including such documentation and information as is reasonably available to Officer and is reasonably necessary to determine whether and to what extent Officer is entitled to indemnification. The determination Determination of OfficerIndemnitee’s entitlement to indemnification shall be made not later than 60 days after made, or be required to be made, as a condition to or otherwise in connection with any advancement of Expenses pursuant to Section 7 of this Agreement or, with respect to any Proceeding, to the extent Indemnitee has been successful on the merits or otherwise in such Proceeding. If, at the time of receipt by the Company of the written any such request for indemnification. , the Company has director and officer insurance policies in effect, the Company will promptly notify the relevant insurers in accordance with the procedures and requirements of such policies.
(b) The Secretary of the Company shall, promptly upon receipt of such a request claim for indemnificationindemnification from the Indemnitee, advise the Board of Directors in writing that Officer Indemnitee has requested indemnification.
(b) Officer. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee under the immediately preceding sentence irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification under any of Sections 2, 3, and 4, and to contribution under Section 5, of this Agreement shall be determined in the specific case: (i) by the Board of Directors by a majority vote of a quorum of the Board of Directors consisting of Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel (as hereinafter defined), in a written opinion if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs. If, with regard to Section 5 of this Agreement, such a determination is not permitted by law or if a quorum of Disinterested Directors so directs, such determination shall be made by the Chancery Court of the State of Delaware or the court in which the Proceeding giving rise to the claim for indemnification is broughtindemnification.
(c) In Upon submission of a written request by the event that the determination of Indemnitee for indemnification as provided in Section 5(a), a Determination shall be made as to Indemnitee’s entitlement to indemnification. Any such Determination shall be made within thirty (30) days after receipt of Indemnitee’s written request for indemnification or contribution is pursuant to Section 5(a), unless Indemnitee agrees to a longer period, and such Determination shall be made either (i) by a majority of the Disinterested Directors, so long as Indemnitee does not request that such Determination be made by Independent Counsel, or (ii) if so requested by Indemnitee, in Indemnitee’s sole discretion, by Independent Counsel pursuant in a written opinion to Section 6(bthe Company and Indemnitee. If a Determination is made that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) days after such Determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such Determination. Any Expenses incurred by Indemnitee in so cooperating shall be advanced and borne by the Company (irrespective of the Determination as to Indemnitee’s entitlement to indemnification) and the Company is liable to indemnify and hold Indemnitee harmless therefrom. If the person, persons or entity making such Determination shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of this Agreementthe application for indemnification, such person, persons or entity shall reasonably prorate such part of indemnification among such claims, issues or matters.
(d) In the event Indemnitee requests that the Determination be made by Independent Counsel shall be selected as provided in this Section 6(c). The Counsel, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection by made by the Board of Directors, in which event the Board of Directors shall make such selection on behalf of the Company, subject to the remaining provisions of this Section 5(d)), and Indemnitee or the Company Company, as the case may be, shall give written notice to Officer the other, advising Officer the Company or Indemnitee of the identity of the Independent Counsel so selected. Officer The Company or Indemnitee, as the case may be, may, within seven ten (10) days after receipt of such written notice of selection shall have been givenreceived, deliver to Indemnitee or the Company Company, as the case may be, a written objection to such selection. Such ; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 22 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such a written objection is madeso made and substantiated, the Independent Counsel so selected shall be disqualified from acting may not serve as suchIndependent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Officer Indemnitee of a written request for indemnification pursuant to Section 6(a5(a) of this Agreement, no Independent Counsel shall have been selected, or if selected shall have been and not objected to, in accordance with this Section 6(c), either the Company or Officer Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Court Company or Indemnitee to the other’s selection of Chancery of the State of Delaware Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such the court or by such other person as such the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) of this Agreement, and . Any expenses incurred by Independent Counsel shall be borne by the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless (irrespective of the manner in which such Independent Counsel was selected or appointed.
(d) In connection with any determination Determination of Indemnitee’s entitlement to indemnification or contribution hereunder, the determining party shall presume that Officer has satisfied the applicable standard of conduct indemnification) and is entitled to indemnification, and the burden of proof shall be on the Company or its representative to establish, not by clear and convincing evidence, that Officer is not so entitledIndemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Cellu Tissue Holdings, Inc.)