Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 4 contracts
Sources: Indemnification Agreement, Indemnification Agreement (MSG Entertainment Spinco, Inc.), Director Indemnification Agreement (Bank of New York Mellon CORP)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee (i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL NRS 78.7502 (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL NRS that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware Nevada having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 3 contracts
Sources: Indemnification Agreement (Madison Square Garden Sports Corp.), Indemnification Agreement (Madison Square Garden Entertainment Corp.), Indemnification Agreement (Sphere Entertainment Co.)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to an Indemnifiable Claim that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) if a Change of in Control (as defined in Section 1 of this Agreement) shall not have occurred, or (2) ordered by if a court or other tribunal, such determinations of whether Change in Control shall have occurred but Indemnitee shall have requested that the Standard of Conduct has been satisfied shall Determination be made by pursuant to this clause (i), (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) if such Disinterested Directors so direct, by a majority vote of a committee of such directors Disinterested Directors designated by a majority vote of such directors, even though less than a quorumall Disinterested Directors, or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel Independent Counsel in a written opinionopinion addressed to the Board, or a copy of which shall be delivered to Indemnitee; and
(Dii) by stockholders of the Company. If if a Change of in Control has occurred, such determination of whether shall have occurred and Indemnitee shall not have requested that the Standard of Conduct has been satisfied shall Determination be made pursuant to clause (i), by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which shall be delivered to Indemnitee. Such independent legal counsel shall be selected by Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or persons, 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 approved by the Company (which approval shall not be unreasonably withheld or delayed)reasonably necessary to such determination. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection so cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 3 contracts
Sources: Director and Officer Indemnification Agreement (Crestwood Midstream Partners LP), Director and Officer Indemnification Agreement (Crestwood Equity Partners LP), Director and Officer Indemnification Agreement (Crestwood Midstream Partners LP)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control has occurred (other than as defined provided in Section 1 of this Agreement) shall have occurred9(b)(iii)), or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee;
(ii) if a Change in Control shall have occurred, (A) if Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and
(iii) if no Change in Control has occurred and Indemnitee and approved by is no longer an officer or director of the Company (for whatever reason), (A) if Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within twenty (20) days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 3 contracts
Sources: Indemnification Agreement (Edgewater Technology Inc/De/), Indemnification Agreement (Edgewater Technology Inc/De/), Indemnification Agreement (Edgewater Technology Inc/De/)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by have been finally disposed of, any determination of whether the Company unless it Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of the DGCL Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay indemnify and hold harmless the fees and expenses Indemnitee against and, if requested by the Indemnitee, shall reimburse the Indemnitee for, or advance to the Indemnitee, within 20 days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by the Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 2 contracts
Sources: Indemnification Agreement (MedAmerica Properties Inc.), Merger Agreement (Truli Technologies, Inc.)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 5(a) are inapplicable to a Proceeding related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Liabilities relating to such Proceeding and any determination that an advancement of Expenses must be repaid to the DGCL Corporation (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board of Directors, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board of Directors, a copy of which shall be delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board of Directors, or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee. Such independent legal counsel The Corporation shall be selected indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee and approved by the Company for, or advance to Indemnitee, within fifteen (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses 15) days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 2 contracts
Sources: Indemnification Agreement (Artivion, Inc.), Indemnification Agreement (Artivion, Inc.)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee I▇▇▇▇▇▇▇▇▇ acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel Chief Executive Officer of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Actuate Therapeutics, Inc.), Indemnification Agreement (Actuate Therapeutics, Inc.)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 10(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to or arising out of or in Section 145 of connection with such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within twenty (20) calendar days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the Person or Persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 2 contracts
Sources: Indemnification Agreement (First Foundation Inc.), Indemnification Agreement (First Foundation Inc.)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “"Standard of Conduct”", with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Bank of New York Mellon Corp), Indemnification Agreement (Bank of New York Mellon Corp)
Standard of Conduct. (a) No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to shall have met the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless.
(1b) Unless a Change of in Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) and unless otherwise ordered by a court or other tribunalcourt, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the Company’s directors of the Company who are not parties to the ProceedingProceeding for which indemnification is sought, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such the Company’s directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) if the Board shall so direct, by stockholders of the Company. ’s stockholders.
(c) If a Change of in Control has shall have occurred, unless otherwise ordered by a court, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion opinion.
(d) If any determination pursuant to the Company and Indemnitee. Such this Section 6 shall be made by independent legal counsel, such counsel shall be selected by Indemnitee and approved selected, (i) if a Change in Control shall not have occurred, by the directors of the Company described in clause (b)(i) or (b)(ii) of this Section 6, in their sole discretion and (ii) if a Change in Control shall have occurred, by such directors, subject to the consent of Indemnitee, which approval shall consent may not be unreasonably withheld withheld, conditioned or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses .
(including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. e) Indemnitee shall be deemed to have met the relevant Standard of Conduct if the a determination is pursuant to clause (b) or (c) of this Section 6 has not been not made by the Company within sixty days of receipt by the General Counsel of a written request demand by Indemnitee for indemnityindemnification of Losses. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State Delaware Court of Delaware having subject matter jurisdiction thereof and in which venue is proper Chancery seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 6 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event .
(f) No determination regarding the relevant Standard of Conduct shall a determination be a prerequisite to or affect required before the Company’s obligation to advance Company advances Expenses to Indemnitee pursuant to Section 3 6 of this AgreementAgreement or shall otherwise affect the Company’s obligations under such Section.
Appears in 2 contracts
Sources: Indemnification Agreement (Leonardo DRS, Inc.), Indemnification Agreement (ProSight Global, Inc.)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 3.6(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the “Standard of Conduct”, with such a "Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to IndemniteeDetermination") except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors Disinterested Directors, even if less than a quorum of the Company who are not parties to Board of Directors; (B) by a committee of Disinterested Directors designated by a majority vote of the ProceedingDisinterested Directors, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, ; or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board of Directors, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board of Directors or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board of Directors, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within fourteen (14) calendar days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Sources: Director and Officer Indemnification Agreement (Guardion Health Sciences, Inc.)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her the Indemnitee’s conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except ); provided that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made (i) by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Legal Counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Legal Counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayedacting reasonably). The Company shall pay the reasonable and documented fees and expenses of the independent legal counsel Independent Legal Counsel and indemnify the independent legal counsel Independent Legal Counsel against any and all reasonable and documented expenses (including attorneys’ fees), claims, liabilities claims and damages arising out of or relating to its engagement engagement, in each case, except to the extent of the Independent Legal Counsel’s willful misconduct, gross negligence or bad faith (other than an action or failure to act undertaken or refrained from being undertaken at the written or express request of or with the written or express consent of the Company), and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty 60 days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any Except in the case of litigation referred to in the previous sentence, any determination under this Section 5 otherwise 6 shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 4 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee ▇▇▇▇▇▇▇▇▇▇ acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification shall be paid by To the Company unless it extent that the provisions of Section 8(a) are inapplicable to a Proceeding related to an Indemnifiable Event that has been determined that finally disposed of, the determination of whether Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to has satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Proceeding and the DGCL determination of whether any Expenses advanced to Indemnitee must be repaid to the Corporation (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall will be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel Independent Counsel in a written opinionopinion addressed to the Board, or a copy of which must be delivered to Indemnitee; and
(Dii) by stockholders of the Company. If if a Change of in Control has occurred, such determination (A) if Indemnitee so requests in writing, by a majority vote of whether the Standard Disinterested Directors, even if less than a quorum of Conduct has been satisfied shall be made the Board or (B) otherwise, by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which must be delivered to Indemnitee. Such independent legal counsel The Corporation shall be selected indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee and approved by the Company (which approval shall not be unreasonably withheld for, or delayed). The Company shall pay the fees and expenses advance to Indemnitee, within 10 business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim for indemnification shall be paid by the Company pursuant to this Agreement unless it has been determined that Indemnitee ▇▇▇▇▇▇▇▇▇▇ acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the present standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been finally adjudged to be liable to the CompanyCompany without any further right of appeal, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the “Standard of Conduct”, with such a "Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to IndemniteeDetermination") except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which shall be delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. Such independent legal counsel Indemnitee shall cooperate with the persons making such determination, including providing to such persons, upon reasonable request, any documentation or information that is not privileged or otherwise protected from disclosure and which is reasonable available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorney's fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be selected by Indemnitee and approved borne by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses irrespective of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating determination as to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed Indemnitee's entitlement to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, indemnification) and the Company hereby consents to service of process indemnifies and agrees to appear hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall that Indemnitee is or is not entitled to indemnification, including a determination be a prerequisite to description of any reason or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreementbasis for which indemnification has been denied.
Appears in 1 contract
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Claim that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which shall be delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel, selected by the Indemnitee, subject to the reasonable approval of the Board, in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (shall cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or persons, upon reasonable advance request, any documentation or information which approval shall is not be unreasonably withheld privileged or delayed)otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within thirty (30) days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors Disinterested Directors, even if less than a quorum of the Company who are not parties to Board, (B) if such Disinterested Directors so direct, by a committee of Disinterested Directors designated by a majority vote of the ProceedingDisinterested Directors, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within ten business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with such determination. Indemnitee shall be deemed to have met the person or persons making any Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Sources: Indemnification Agreement (Cornerstone Therapeutics Inc)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessmanner
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Madison Square Garden Co)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by have been finally disposed of, any determination of whether the Company unless it Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Nevada law that is a legally required condition to indemnification of the DGCL Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to the Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to the Indemnitee. The Company shall pay indemnify and hold harmless the fees and expenses Indemnitee against and, if requested by the Indemnitee, shall reimburse the Indemnitee for, or advance to the Indemnitee, within 60 days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by the Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.Determination.
Appears in 1 contract
Sources: Indemnification Agreement
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) [Mandatory Indemnification; Indemnification as a Witness] are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within thirty (30) days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. (a) No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to shall have met the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless.
(1b) Unless a Change of in Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) and unless otherwise ordered by a court or other tribunalcourt, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the Company’s directors of the Company who are not parties to the ProceedingProceeding for which indemnification is sought, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such the Company’s directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) if the Board shall so direct, by stockholders of the Company. ’s stockholders.
(c) If a Change of in Control has shall have occurred, unless otherwise ordered by a court, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion opinion.
(d) If any determination pursuant to the Company and Indemnitee. Such this Section 7 shall be made by independent legal counsel, such counsel shall be selected by Indemnitee and approved selected, (i) if a Change in Control shall not have occurred, by the directors of the Company described in clause (b)(i) or (b)(ii) of this Section 7, in their sole discretion and (ii) if a Change in Control shall have occurred, by such directors, subject to the consent of Indemnitee, which approval shall consent may not be unreasonably withheld withheld, conditioned or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses .
(including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. e) Indemnitee shall be deemed to have met the relevant Standard of Conduct if the a determination is pursuant to clause (b) or (c) of this Section 7 has not been made by the Company within sixty days of receipt by the General Counsel of a written request demand by Indemnitee for indemnityindemnification of Losses. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State Delaware Court of Delaware having subject matter jurisdiction thereof and in which venue is proper Chancery seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 6 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event .
(f) No determination regarding the relevant Standard of Conduct shall a determination be a prerequisite to or affect required before the Company’s obligation to advance Company advances Expenses to Indemnitee pursuant to Section 3 7 of this AgreementAgreement or shall otherwise affect the Company’s obligations under such Section.
Appears in 1 contract
Sources: Indemnification Agreement (Dynasty Financial Partners Inc.)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlesswas
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding (i) by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors Disinterested Directors, even if less than a quorum of the Company who are not parties to Board, (ii) by a committee of Disinterested Directors designated by a majority vote of the ProceedingDisinterested Directors, even though less than a quorum, or (Biii) by a committee at the election of such directors designated by a majority vote of such directors, even though less than a quorum, Indemnitee in his or (C) if there are no such directors, or if such directors so directher sole discretion, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and Indemnitee shall cooperate with the persons making such determination, including providing to such persons, upon reasonable request, any documentation or information that is not privileged or otherwise protected from disclosure and which is reasonable available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorney’s fees and disbursements) incurred by Indemnitee and approved in so cooperating with the person, persons or entity making such determination shall be borne by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses irrespective of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating determination as to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed Indemnitee’s entitlement to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, indemnification) and the Company hereby consents to service of process indemnifies and agrees to appear hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall that Indemnitee is or is not entitled to indemnification, including a determination be a prerequisite to description of any reason or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreementbasis for which indemnification has been denied.
Appears in 1 contract
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee ▇▇▇▇▇▇▇▇▇▇ acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Appears in 1 contract
Standard of Conduct. (a) No claim for indemnification shall be paid by the Company unless it the Company has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) Unless ordered by a court or other tribunalcourt, such determinations of whether the Standard of Conduct has been satisfied shall be made made: (i) prior to a Change in Control (a) by (A) a majority vote of the Company’s directors of the Company who are not parties to the ProceedingProceeding for which indemnification is sought, even though less than a quorum, or (Bb) by a committee of such directors designated by a majority vote of such the Company’s directors, even though less than a quorum, or (Cc) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Counsel (selected by a majority vote of the Company’s directors and approved by Indemnitee, which approval shall not unreasonably be withheld or delayed) in a written opinion, a copy of which shall be delivered to Indemnitee, or (Dd) by stockholders of the Company. If ’s stockholders, or (ii) following a Change of Control has occurredin Control, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be Independent Counsel (selected by Indemnitee and approved by the Company (Company, which approval shall not unreasonably be unreasonably withheld or delayed)) in a written opinion, a copy of which shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including without limitation, a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall pay be made within 10 days after such determination. Indemnitee shall reasonably cooperate with the fees 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 expenses of the independent legal counsel which is reasonably available to Indemnitee and indemnify the independent legal counsel against any and all expenses reasonably necessary to such determination. Any Expenses (including attorneys’ feesfees and disbursements) 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), claimsand the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom to the fullest extent permitted by applicable law.
(b) For purposes of any determination of good faith, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met acted in good faith if Indemnitee’s action is based on good faith reliance on (i) the Standard records or books of Conduct if account of the determination is not made Company, including financial statements, (ii) information supplied to Indemnitee by the directors or officers of the Company in the course of their duties as to matters Indemnitee reasonably believed were within sixty days such other person’s competence, (iii) the advice of receipt legal counsel for the Company, its Board, any committee of the Board or any director as to matters Indemnitee reasonably believed were within such other person’s professional or expert competence, or (iv) information or records given or reports made to the Company, its Board, any committee of the Board or any director, by an independent certified public accountant or by an appraiser or other expert as to matters Indemnitee reasonably believed were within such other person’s professional or expert competence. The provisions of this Section 6(b) shall not be deemed to be exclusive or to limit in any way the General Counsel of a written request by Indemnitee for indemnity. If other circumstances in which the Indemnitee has been determined not may be deemed or found to have met the Standard applicable standard of Conduct, Indemnitee may commence litigation conduct set forth in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
(c) The knowledge and/or actions, or failure to act, of any other director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Artisan Partners Asset Management Inc.)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, (x) any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and (y) any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within 30 days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 4 are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under applicable law that is a legally required condition to indemnification of Indemnitee hereunder against Expenses relating to such Claim and any determination that Expense advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within 30 days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Sources: Indemnification Agreement (Texas New Mexico Power Co)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 10(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though if less than a quorum, quorum of the Board or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee in writing, shall reimburse Indemnitee for, or advance to Indemnitee, within twenty (20) calendar days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Sources: Indemnification Agreement (Spectrum Pharmaceuticals Inc)
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, quorum or (C) if there are no such directors, Disinterested Directors or if such directors Indemnitee so directrequests, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim To the extent that the provisions of Section 8(a) are inapplicable to a Proceeding for which Indemnitee is entitled to indemnification shall be paid by the Company unless it pursuant to Section 4 that has been determined that finally disposed of, the determination of whether Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to has satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under applicable law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Proceeding and the DGCL determination of whether any Expenses advanced to Indemnitee must be repaid to the Corporation (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall will be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel Independent Counsel in a written opinionopinion addressed to the Board, or a copy of which must be delivered to Indemnitee; and
(Dii) by stockholders of the Company. If if a Change of in Control has occurred, such determination (A) if Indemnitee so requests in writing, by a majority vote of whether the Standard Disinterested Directors, even if less than a quorum of Conduct has been satisfied shall be made the Board or (B) otherwise, by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which must be delivered to Indemnitee. Such independent legal counsel The Corporation shall be selected indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee and approved by the Company (which approval shall not be unreasonably withheld for, or delayed). The Company shall pay the fees and expenses advance to Indemnitee, within 10 business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) above are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by have been finally disposed of, any determination of whether the Company unless it Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of the DGCL Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so directDisinterested Directors, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to the Indemnitee; and
(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by Indemnitee and approved a majority vote of the Disinterested Directors, even if less than a quorum of the Board, or (B) otherwise, by Independent Counsel in a written opinion addressed to the Company (Board, a copy of which approval shall not be unreasonably withheld or delayed)delivered to the Indemnitee. The Company shall pay indemnify and hold harmless the fees and expenses Indemnitee against and, if requested by the Indemnitee, shall reimburse the Indemnitee for, or advance to the Indemnitee, within 60 days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by the Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Sources: Indemnification Agreement (Twin Hospitality Group Inc.)
Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except ); provided that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless
(1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Legal Counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Legal Counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel Independent Legal Counsel and indemnify the independent legal counsel Independent Legal Counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty (60) days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any Except in the case of litigation referred to in the previous sentence, any determination under this Section 5 otherwise 6 shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 4 of this Agreement.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Nevada law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the “Standard of Conduct”, with such a "Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to IndemniteeDetermination") except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or quorum consisting entirely of Disinterested Directors,
(Cii) if there are no such directors, or if such directors a majority vote of a quorum consisting entirely of Disinterested Directors so directorders, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to the Indemnitee,
(iii) if a quorum of Disinterested Directors cannot be obtained, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to the Indemnitee, or
(iv) if a Change in Control has occurred since the time of any acts or omissions of Indemnitee and approved by or the Company (that are related to a Claim for which approval the indemnification is sought, at the option of Indemnitee, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall not be unreasonably withheld or delayed)delivered to Indemnitee. The Company shall pay the fees indemnify and expenses hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within 15 business days of the independent legal counsel and indemnify the independent legal counsel against such request, any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred by Indemnitee in connection cooperating with the person or persons making such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this AgreementDetermination.
Appears in 1 contract
Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 10(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unlessfollows:
(1i) a if no Change of in Control (as defined in Section 1 of this Agreement) shall have has occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) by a majority vote of the directors of the Company who are not parties to the ProceedingDisinterested Directors, even though if less than a quorumquorum of the Board, or (B) by a committee of such directors Disinterested Directors designated by a majority vote of such directorsthe Disinterested Directors, even though less than a quorum, or quorum (C) if there are no such directors, Disinterested Directors or if such directors Disinterested Directors so direct, by independent legal counsel Independent Counsel in a written opinionopinion addressed to the Board, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Board, by the stockholders of the Company. If ; and
(ii) if a Change of in Control has shall have occurred, such determination (A) if the Indemnitee so requests in writing, by a majority vote of whether the Standard Disinterested Directors, even if less than a quorum of Conduct has been satisfied shall be made the Board or (B) otherwise, by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Board, a copy of which shall be delivered to Indemnitee. Such independent legal counsel The Company shall be selected indemnify and hold harmless Indemnitee against and, if requested by Indemnitee in writing, shall reimburse Indemnitee for, or advance to Indemnitee, within twenty (20) calendar days of such request, any and approved all Expenses actually and reasonably incurred by Indemnitee in cooperating with the Company Person or Persons making such Standard of Conduct Determination (which approval shall not be unreasonably withheld or delayedirrespective of the determination as to Indemnitee’s entitlement to indemnification). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against promptly will advise Indemnitee in writing with respect to any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of determination that Indemnitee is or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days entitled to indemnification, including a description of receipt by the General Counsel of a written request by Indemnitee any reason or basis for indemnity. If the Indemnitee which indemnification has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreementdenied.
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