Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Company;
(b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Company’s charter or Bylaws, a resolution of the stockholders entitled to vote generally in the election of directors or of the Board of Directors or an agreement approved by the Board of Directors to which the Company is a party expressly provide otherwise.
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification for any loss or liability unless all of the following conditions are met: (i) Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Company; (ii) Indemnitee was acting on behalf of or performing services for the Company; (iii) such loss or liability was not the result of (A) gross negligence or willful misconduct, in the case that the Indemnitee is an independent director of the Company or (B) negligence or misconduct, in the case that the Indemnitee is not an independent director of the Company; and (iv) such indemnification is recoverable only out of the Company’s net assets and not from the Company’s stockholders;
(b) indemnification for any loss or liability arising from an alleged violation of federal or state securities laws unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws;
(c) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged to be liable to the Company;
(d) indemnification hereunder if Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(e) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Comp...
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee may not be indemnified:
(a) if the proceeding was one by or in the right of the Company and the Indemnitee is adjudged to be liable to the Company; or
(b) if the Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to the Indemnitee, whether or not involving action in the Indemnitee’s official capacity.
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Trust and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Trust;
(b) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 11 of this Agreement, or (ii) the Declaration of Trust of the Trust (the “Declaration of Trust”) or Bylaws of the Trust (the “Bylaws”), or a resolution of the Board of Trustees or an agreement approved by the Board of Trustees to which the Trust is a party expressly provide otherwise.
Certain Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) will be limited to an aggregate amount equal to Seven Million Five Hundred Thousand Dollars ($7,500,000) (the “R&W Cap”), provided, that the foregoing clause will not apply to Losses arising out of or relating to the breach of any Fundamental Representation of Seller or the Company, and (ii) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) in respect of Fundamental Representations will be limited to an aggregate amount equal to Twenty Million Dollars ($20,000,000) (the “Aggregate Cap”).
(b) Seller and Seller Parent will have no obligation to indemnify the Buyer Indemnified Parties against Losses under Section 8.2(a) unless the aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) is greater than (i) in the case of any breach of any Fundamental Representation of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “Fundamental Basket”), in which case the Buyer Indemnified Parties will, subject to Section 8.5(a), be entitled to indemnification for Losses from the first dollar of such Losses, and (ii) in the case of any breach of any representation or warranty other than the Fundamental Representations of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “General Basket” and together with the Fundamental Basket, each a “Basket”), in which case the Buyer Indemnified Parties will, subject to Section 8.5(a), be entitled to indemnification for Losses in excess of the General Basket.
(c) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) will be limited to an aggregate amount equal to the R&W Cap, provided, that the foregoing clause will not apply to Losses arising out of or relating to the breach of any Fu...
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), and except to the extent otherwise permitted by Maryland law, Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was by or in the right of the Trust and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Trust;
(b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Trust Status; or
(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Declaration of Trust or Bylaws, a resolution of the shareholders entitled to vote generally in the election of trustees or of the Board of Trustees or an agreement approved by the Board of Trustees to which the Trust is a party, expressly provides otherwise.
Certain Limits on Indemnification. (a) Notwithstanding anything to the contrary in this Agreement, the Alcatel Indemnitees shall not be entitled to satisfy their claims for Losses under Section 8.01 from the Escrow Indemnity Account unless the aggregate amount of Losses for which any one or more of the Alcatel Indemnitees would be entitled to indemnification under Section 8.01 equals or exceeds $1,000,000 (the "Basket Amount"), in which case the Alcatel Indemnitees shall be entitled to the entire amount of such Losses, including Losses covered by the Basket Amount.
(b) For purposes of this Article VIII, the amount of any Losses shall be determined (A) without giving effect to any Company Material Adverse Effect standard or any other materiality or similar qualification contained in any representation, warranty or covenant herein and (B) net of any tax benefits realized by the Alcatel Indemnitees as a direct result of such Loss.
(c) Each Alcatel Indemnitee shall have the obligation to take commercially reasonable efforts to mitigate the Losses.
(d) Subject to the proviso of this Section 8.04(d), no claim under this Article VIII shall be made after the expiration of the Survival Period, provided, however, that if written notice of a claim is made prior to the expiration of the Survival Period , then the relevant representation, warranty or covenant shall survive as to such claim only until the claim has been finally resolved.
(e) If there is a final determination that an indemnity payment made pursuant to this Article VIII is taxable to the Alcatel Indemnitee, the Alcatel Indemnitee shall be entitled to such additional amounts as will result in the Alcatel Indemnitee receiving on an after-tax basis the amount of indemnity to which it is entitled.
Certain Limits on Indemnification. (a) For purposes of this Article VIII, the amount of any Losses shall be determined (A) without giving effect to any Company Material Adverse Effect standard or any other materiality or similar materiality qualification contained in any representation, warranty or covenant herein or in any Ancillary Agreement and (B) net of any insurance proceeds actually received by the Parent Indemnitees in connection with the matter out of which such Losses shall arise.
(b) Subject to the proviso of this Section 8.3(b), no claim under this Article VIII shall be made after the expiration of the Survival Period, provided, however, that if written notice of a claim is made in good faith prior to the expiration of the Survival Period (such notice setting forth in reasonable detail the basis for such Claim), then the relevant representation, warranty or covenant shall survive as to such claim only until the claim has been fully and finally resolved.
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to indemnification or advancement of Expenses hereunder:
(a) if the Proceeding was by or in the right of the Company and Indemnitee is adjudged to be liable to the Company;
(b) if Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status;
(c) on account of any Proceeding in which it is determined by final judgment by a court having jurisdiction in the matter that (i) Indemnitee intentionally caused or intentionally contributed to the injury complained of or
Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged to be liable to the Company; or
(b) indemnification hereunder in connection with any other Proceeding charging that Indemnitee derived an improper personal benefit, whether or not involving action in an official capacity, in which Proceeding Indemnitee was adjudged liable on the basis that Indemnitee derived an improper personal benefit.
