Common use of Basic Indemnification Arrangement Clause in Contracts

Basic Indemnification Arrangement. (a) Except as provided in subsections 8.2(d), 8.2(e) and 8.2(f) below, the Corporation shall indemnify an individual who is made a party to a proceeding because he is or was a director or officer against liability incurred by him in the proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. (b) A person's conduct with respect to an employee benefit plan for a purpose he believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 8.2(a). (c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 8.2(a). (d) The Corporation shall not indemnify a person under this Article in connection with a proceeding by or in the right of the Corporation in which such person was adjudged liable to the Corporation, unless, and then only to the extent that, the Reviewing Party, or a court of competent jurisdiction acting pursuant to Section 8.5 of this Article, determines that, in view of the circumstances of the case, the indemnitee is fairly and reasonably entitled to indemnification. (e) Indemnification permitted under this Article in connection with a proceeding by or in the right of the Corporation shall include reasonable expenses, penalties, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement (provided that such settlement and the amounts paid in connection therewith are not unreasonable, as determined by the Reviewing Party responsible for making the determination that indemnification is permissible as described in Section 8.4(b) below) in connection with the proceeding, but, unless ordered by a court, shall not include judgments. (f) Notwithstanding any other provision of this Article, no person shall be entitled to indemnification or advancement of expense hereunder with respect to any proceeding or claim brought or made by him against the Corporation, other than a proceeding or claim seeking or defending such person's right to indemnification or advancement of expense pursuant to Section 8.5 hereof or otherwise. (g) If any person is entitled under any provision of this Article to indemnification by the Corporation for some portion of liability incurred by him, but not the total amount thereof, the Corporation shall indemnify such person for the portion of such liability to which he is entitled. (h) The Corporation shall indemnify a director or officer to the extent that he has been successful, on the merits or otherwise, in the defense of any proceeding to which he was a party, or in defense of any claim, issue or matter therein, because he is or was a director or officer, against reasonable expenses incurred by him in connection with the proceeding.

Appears in 1 contract

Samples: Merger Agreement (Syratech Corp)

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Basic Indemnification Arrangement. (a) Except as provided in subsections 8.2(d), 8.2(e) In accordance with the provisions of the Massachusetts Business Corporation Law and 8.2(f) belowthe By-Laws, the Corporation shall Company shall, to the extent legally permissible, indemnify an individual who is made a party to a proceeding because he is the Indemnitee against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or was as fines and penalties, and counsel fees, reasonably incurred by the Indemnitee in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which the Indemnitee may be involved or with which the Indemnitee may be threatened, while in office or thereafter, by reason of the Indemnitee being or having been a director or officer against liability incurred by him of the Company, except with respect to any matter as to which the Indemnitee shall have been adjudicated in the any proceeding if he not to have acted in good faith and in a manner he reasonably believed to be the reasonable belief that the Indemnitee's action was in or not opposed to the best interests of the Corporation andCompany (the Indemnitee serving another organization at the request of the Company as director, officer or trustee, provided the Indemnitee shall have acted in good faith in the reasonable belief that the Indemnitee's action was in the best interests of such other organization, to be deemed as having acted in such manner with respect to the Company) or, to the extent that such matter relates to service with respect to any employee benefit plan, in the case best interests of the participants or beneficiaries of such employee benefit plan; provided, however, that as to any matter disposed of by a compromise payment by the Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interests of the Company, after notice that it involves such indemnification: (i) by a disinterested majority of the directors then in office; or (ii) by a majority of the disinterested directors then in office, provided that there has been obtained an opinion in writing of independent legal counsel to the effect that the Indemnitee appears to have acted in good faith in the reasonable belief that the Indemnitee's action was in the best interests of the Company; or (iii) by the holders of a majority of the outstanding stock at the time entitled to vote for directors, voting as a single class, exclusive of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawfulstock owned by any interested director or officer. (b) A person's conduct with respect to an employee benefit plan for a purpose he believed If so requested by the Indemnitee in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 8.2(a). (c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 8.2(a). (d) The Corporation shall not indemnify a person under this Article in connection with a proceeding by or in the right of the Corporation in which such person was adjudged liable to the Corporation, unless, and then only to the extent thatwriting, the Reviewing Party, or a court of competent jurisdiction acting pursuant to Section 8.5 of this Article, determines that, Company shall promptly advance (but in view of the circumstances of the case, the indemnitee is fairly no event more than five (5) business days after receiving such request) any and reasonably entitled to indemnification. (e) Indemnification permitted under this Article in connection with a proceeding by or in the right of the Corporation shall include reasonable all expenses, penaltiesincluding counsel fees, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement (provided that such settlement and the amounts paid in connection therewith are not unreasonable, as determined reasonably incurred by the Reviewing Party responsible for making the determination that indemnification is permissible as described in Section 8.4(b) below) Indemnitee in connection with the proceedingdefense or disposition of any such action, butsuit or other proceeding ("Expenses"), unless ordered to the Indemnitee (an "Expense Advance") upon receipt by a court, the Company of an undertaking by the Indemnitee in form reasonably satisfactory to the Company to repay the Expense Advance if the Indemnitee shall be adjudicated not include judgments. (f) Notwithstanding any other provision of this Article, no person shall to be entitled to indemnification or advancement of expense hereunder with respect to any proceeding or claim brought or made by him against the Corporation, other than a proceeding or claim seeking or defending such person's right to indemnification or advancement of expense pursuant to Section 8.5 hereof or otherwise. (g) If any person is entitled under any provision of this Article to indemnification by the Corporation for some portion of liability incurred by him, but not the total amount thereof, the Corporation shall indemnify such person for the portion of such liability to which he is entitled. (h) The Corporation shall indemnify a director or officer to the extent that he has been successful, on the merits or otherwise, in the defense of any proceeding to which he was a party, or in defense of any claim, issue or matter therein, because he is or was a director or officer, against reasonable expenses incurred by him in connection accordance with the proceedingprovisions of the Massachusetts Business Corporation Law and the By-Laws.

Appears in 1 contract

Samples: Indemnification Agreement (Emc Corp)

Basic Indemnification Arrangement. (a) Except as provided in subsections 8.2(d)In the event the Indemnitee becomes a party to or other participant in, 8.2(e) and 8.2(f) below, the Corporation shall indemnify an individual who or is threatened to be made a party to or other participant in, a proceeding because he is Claim by reason of (or was a director arising in whole or officer in part out of) an Indemnifiable Event, the Corporation and Computer 2000, jointly and severally, shall indemnify the Indemnitee to the fullest extent permitted by law against liability incurred by him in Indemnifiable Expenses if the proceeding if he Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, in the case of with respect to any criminal proceedingProceeding or investigation, he had no reasonable cause to believe his conduct was unlawful. (b) A person's conduct with respect In the event the Indemnitee becomes a party to an employee benefit plan for a purpose he believed in good faith or other participant in, or is threatened to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 8.2(a). (c) The termination of made a proceeding by judgmentparty to or other participant in, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 8.2(a). (d) The Corporation shall not indemnify a person under this Article in connection with a proceeding Claim by or in the right of the Corporation to procure a judgment in which such person was adjudged liable to its favor by reason of (or arising in whole or in part out of) an Indemnifiable Event, the CorporationCorporation and Computer 2000, unless, and then only to jointly and (c) To the extent thatthat the Indemnitee has been successful on the merits or otherwise, including, without limitation, the Reviewing Party, or a court dismissal of competent jurisdiction acting pursuant to Section 8.5 of this Article, determines thatan action without prejudice, in view defense of the circumstances of the caseany Claim referred to in Sections 2(a) or 2(b) hereof, the indemnitee is fairly Indemnitee shall be indemnified against Indemnifiable Expenses actually and reasonably entitled to indemnificationincurred by him in connection therewith. (ed) Indemnification permitted Subject to Section 3(a), any indemnification under this Article in connection with a proceeding by Section 2(a) or in the right of the Corporation shall include reasonable expenses, penalties, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement (provided that such settlement and the amounts paid in connection therewith are not unreasonable, as determined by the Reviewing Party responsible for making the determination that indemnification is permissible as described in Section 8.4(b) below) in connection with the proceeding, but2(b), unless ordered by a court, shall not include judgments.be made by the Corporation or Computer 2000 only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has satisfied the applicable standard set forth in Section 2(a) or 2(b), as the case may be. Such determination shall be made: (fi) Notwithstanding any other provision by the Board of Directors of the Corporation (the "Board") by a majority vote of a quorum consisting of directors who were not parties to such Proceeding; (ii) if such a quorum of disinterested directors is not available or if such disinterested directors so direct, by independent legal counsel (designated in the manner provided below in this Article, no person Section 2(d)) in a written opinion; or (iii) by the common stockholders of the Corporation entitled to vote at the election of directors (the "Stockholders") by a majority vote of Stockholders present at a meeting at which a quorum is present. Independent legal counsel shall be entitled designated by vote of a majority of the disinterested directors; provided, however, that if the Board is unable or fails to indemnification or advancement of expense hereunder with respect to any proceeding or claim brought or so designate, such designation shall be made by him against the Indemnitee subject to the approval of the Corporation and Computer 2000, which approval shall not be unreasonably withheld. Independent legal counsel shall not be any person or firm who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Corporation, other than a proceeding Computer 2000 or claim seeking or defending such personthe Indemnitee in an action to determine the Indemnitee's right rights under this Agreement. The Corporation and Computer 2000, jointly and severally, agree to indemnification or advancement of expense pursuant to Section 8.5 hereof or otherwise. (g) If any person is entitled under any provision of this Article to indemnification by pay the Corporation for some portion of liability incurred by him, but not the total amount thereof, the Corporation shall indemnify such person for the portion reasonable fees and expenses of such liability to which he is entitled. (h) The Corporation shall indemnify a director or officer to the extent that he has been successful, on the merits or otherwise, in the defense of any proceeding to which he was a party, or in defense of any claim, issue or matter therein, because he is or was a director or officer, against reasonable expenses incurred by him in connection with the proceeding.independent legal counsel and to

Appears in 1 contract

Samples: Indemnification Agreement (Ameriquest Technologies Inc)

Basic Indemnification Arrangement. (a) Except The Company will indemnify and hold harmless Indemnitee, as provided in subsections 8.2(d)this Agreement and to the fullest extent permitted by the laws of the State of Delaware in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, 8.2(eagainst all Indemnifiable Losses relating to, resulting from or arising out of any Proceeding. (b) and 8.2(f) belowWithout limiting the generality of the foregoing, the Corporation Company shall indemnify an individual who Indemnitee when he was or is a party or is threatened to be made a party to a proceeding because any Proceeding (other than an action or suit by or in the name of the Company), by reason of the fact that he is or was or had agreed to become a director or officer of the Company, or is or was serving or had agreed to serve at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against liability any and all Indemnifiable Losses incurred by him Indemnitee in the proceeding connection therewith if he Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation Company, and, in the case of with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. (b) A person's conduct with respect to an employee benefit plan for a purpose he believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 8.2(a). (c) . The termination of a any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative create a presumption that the proposed indemnitee Indemnitee did not meet satisfy the foregoing standard of conduct set forth in subsection 8.2(a)to the extent applicable thereto. (dc) The Corporation Company shall not indemnify Indemnitee when he was or is a person under this Article in connection with party or is threatened to be made a proceeding party to any threatened, pending or completed action or suit by or in the right of the Corporation Company to procure a judgment in its favor by reason of the fact that he is or was or had agreed to become a director or officer of the Company, or is or was serving or had agreed to serve at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against Indemnifiable Losses incurred by Indemnitee in connection with the defense or settlement thereof or any appeal therefrom if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person was Indemnitee shall have been adjudged to be liable to the Corporation, unless, Company unless and then only to the extent that the Delaware Court of Chancery or the court in which such action, suit or proceeding was brought shall determine upon application that, despite the Reviewing Party, or a court adjudication of competent jurisdiction acting pursuant to Section 8.5 of this Article, determines that, liability but in view of all the circumstances of the case, the indemnitee Indemnitee is fairly and reasonably entitled to indemnificationindemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. (ed) Indemnification permitted under this Article in connection with a proceeding by or in the right of the Corporation shall include reasonable expenses, penalties, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement (provided that such settlement and the amounts paid in connection therewith are not unreasonable, as determined by the Reviewing Party responsible for making the determination that indemnification is permissible as described in Section 8.4(b) below) in connection with the proceeding, but, unless ordered by a court, shall not include judgments. (f) Notwithstanding any other provision of this Article, no person shall be entitled to indemnification or advancement of expense hereunder with respect to any proceeding or claim brought or made by him against the Corporation, other than a proceeding or claim seeking or defending such person's right to indemnification or advancement of expense pursuant to Section 8.5 hereof or otherwise. (g) If any person is entitled under any provision of this Article to indemnification by the Corporation for some portion of liability incurred by him, but not the total amount thereof, the Corporation shall indemnify such person for the portion of such liability to which he is entitled. (h) The Corporation shall indemnify a director or officer to To the extent that he Indemnitee has been successful, successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in the defense of any action, suit or proceeding referred to which he was a party, in Sections 2(b) or 2(c) hereof or in defense of any claim, issue or matter therein, because he is or was a director or officer, shall be indemnified against reasonable expenses all Losses actually and reasonably incurred by him Indemnitee in connection therewith. (e) The failure by Indemnitee to notify the Company of such Proceeding will not relieve the Company from any liability hereunder unless, and only to the extent that, the Company did not otherwise learn of the Proceeding and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage. Except as provided in Section 18, however, Indemnitee will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the proceedingCompany or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. (f) If so requested by Indemnitee, the Company will advance within twenty business days of such request and in the manner provided in Section 5 hereof, any and all Expenses to Indemnitee which Indemnitee determines reasonably likely to be payable.

Appears in 1 contract

Samples: Indemnification Agreement (SoftBrands, Inc.)

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Basic Indemnification Arrangement. (a) Except as provided in subsections 8.2(d), 8.2(e) and 8.2(f) below, the Corporation shall indemnify an individual who is made a party to a proceeding because he is or was a director or officer against liability incurred by him in the proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. (b) A person's conduct with respect to an employee benefit plan for a purpose he believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 8.2(a). (c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 8.2(a). (d) The Corporation shall not indemnify a person under this Article in connection with a proceeding by or in the right of the Corporation in which such person was adjudged liable to the Corporation, unless, and then only to the extent that, the Reviewing Party, or a court of competent jurisdiction acting pursuant to Section 8.5 of this Article, determines that, in view of the circumstances of the case, the indemnitee is fairly and reasonably entitled to indemnification. (e) Indemnification permitted under this Article in connection with a proceeding by or in the right of the Corporation shall include reasonable expenses, penalties, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement (provided that such settlement and the amounts paid in connection therewith are not unreasonable, as determined by the Reviewing Party responsible for making the determination that indemnification is permissible as described in Section 8.4(b) below) in connection with the proceeding, but, unless ordered by a court, shall not include judgments. (f) Notwithstanding any other provision of this Article, no person shall be entitled to indemnification or advancement of expense expenses hereunder with respect to any proceeding or claim brought or made by him against the Corporation, other than a proceeding or claim seeking or defending such person's right to indemnification or advancement of expense pursuant to Section 8.5 hereof or otherwise. (g) If any person is entitled under any provision of this Article to indemnification by the Corporation for some portion of liability incurred by him, but not the total amount thereof, the Corporation shall indemnify such person for the portion of such liability to which he is entitled. (h) The Corporation shall indemnify a director or officer to the extent that he has been successful, on the merits or otherwise, in the defense of any proceeding to which he was a party, or in defense of any claim, issue or matter therein, because he is or was a director or officer, against reasonable expenses incurred by him in connection with the proceeding.

Appears in 1 contract

Samples: Merger Agreement (Kindercare Learning Centers Inc /De)

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