Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, 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
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he or she has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Samples: By Laws (McKesson Corp)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding Claim in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense proof shall be on the Company and it shall be presumed to establish that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may benot so entitled. Neither the failure of the Reviewing Party or the Company (including its Boardboard of Directors, independent legal counsel Independent Legal Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee suit that indemnification of the claimant Indemnitee is proper under in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party or Company Corporation (including its BoardBoard of Directors, independent legal counsel Independent Legal Counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company to establish by clear and it convincing evidence that Indemnitee is not so entitled to indemnification. It is the parties’ intention that if Indemnitee commences legal proceedings to secure a judicial determination that Indemnitee should be indemnified under this Agreement or applicable law, the question of Indemnitee’s right to indemnification shall be presumed that for the Indemnitee is entitled court to indemnification or to an Expense Advancedecide, as a de novo trial on the case may bemerits and Indemnitee shall not be prejudiced in any way by reason of an adverse determination. Neither In addition, neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee Covered Person against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee Covered Person pursuant to this Agreement for the amount claimed. ; provided that the Company may not assert this defense in an action brought by Covered Person to enforce a claim for Expense Advance in respect of a Proceeding unless it previously has already been ultimately determined (by a final, non-appealable adjudication or arbitration decision to which Covered Person is a party) that Covered Person is not entitled to indemnification under Section 2 in respect of the Indemnifiable Event that is the subject matter of the Proceeding.
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee Covered Person is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholdersshareholders) to have made a determination prior to the commencement of such action by Indemnitee Covered Person that indemnification of the claimant Covered Person is proper under the circumstances because Indemnitee Covered Person has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel Independent Counsel, or its stockholdersshareholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has Covered Person had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee Covered Person has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any determination claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not, of itself, create a presumption that Covered Person did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholdersstockholders ) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or of books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in this Agreement.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the Company any Enterprise shall not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that the Company is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or payment of Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or payment of Expense Advances) under this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed.
(iii) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval and whether with or without an admission of liability on the part of the Indemnitee), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful or create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(iv) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In connection with the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or any determination by the Reviewing Party proceeding with or otherwise, as to whether Indemnitee is entitled to be indemnified, without payment of money or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and other consideration) it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met been successful on the standard of conduct set forth merits or otherwise in applicable lawsuch action, nor an actual determination by the Reviewing Party suit or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(v) For purposes of any determination of good faith under any applicable standard of conductthis Agreement, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the CompanyEnterprise, including without limitation financial statements, or on information supplied to Indemnitee by the directors or officers of the Company Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board Enterprise or on information or records given or reports made to the Company Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with the reasonable care by the Company or the Board or any committee of the BoardEnterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conductconduct set forth in this Agreement. Whether or not the foregoing provisions of this Section 4(c)(v) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(vi) The knowledge and/or or actions, or failure to act, or of any director, officer, agent or employee of the Company Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be ------------------------------------------------------------ a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding claim in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Florida Business Corporation Act for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving providing such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification Indemnification of the claimant is proper under the circumstances because Indemnitee he or she has met the applicable standard of conduct set forth in applicable lawthe Florida Business Corporation Act, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or of books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the Company any Enterprise shall not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that the Company is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(iii) In connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company.
(iv) It is the parties’ intention that, if the Company and it contests Indemnitees right to indemnification, the question of Indemnitee’s right to indemnification shall be presumed that for the Indemnitee is entitled court to indemnification or to an Expense Advancedecide, as the case may be. Neither and neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be admissible as evidence in any such action for any purpose.
(v) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a defense to the action plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementparticular belief.
Appears in 1 contract
Samples: Indemnification Agreement (Electro Scientific Industries Inc)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense right to indemnification shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beIndemnitee. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he has met the applicable standard of conduct set forth in applicable law, the Delaware General Corporation Law. nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or Expense Advances) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement or a request for Expense Advances in accordance with Section 2(c), and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it (i) payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (ii) indemnification is being sought with respect to a transaction in which Indemnitee derived an improper personal benefit or for any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Company or duty owed by Indemnitee to the Company or any of its subsidiaries; (iii) indemnification is being sought for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; (iv) such indemnification is not permissible lawful under any applicable law for statute or public policy (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to indemnify Indemnitee appropriate courts for adjudication); (v) indemnification is being sought in connection with a Proceeding arising out of or connected with the amount claimed. Indemnitee's employment with the Company or the termination of that employment, including without limitation, claims of wrongful discharge, emotional distress, defamation, fraud, breach of contract, breach of the covenant of good faith and fair dealing, any claims of discrimination or harassment based on sex, age, race, national origin, disability or on any other basis, under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, and all other laws and regulations relating to employment.
(iii) In connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel Independent Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel Independent Counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be admissible as evidence in any such action for any purpose.
(v) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a defense to the action plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses 5 6 incurred in defending a Proceeding claim in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Florida Business Corporation Act for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving providing such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification Indemnification of the claimant is proper under the circumstances because Indemnitee he or she has met the applicable standard of conduct set forth in applicable lawthe Florida Business Corporation Act, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against the Company Tyco Management to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company Tyco Management to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Tyco Management.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee Xxxxxxxxxx has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, Indemnitee Xxxxxxxxxx shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers management of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the Company any Enterprise shall not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) Tyco Management shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Tyco Management is bound by all the provisions of this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Johnson Controls International PLC)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure For purposes of this Agreement, to the fullest extent permitted by law, (1) the termination of any Proceeding, action, suit, or claim, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance permitted by applicable law, and (2) Indemnitee shall be admissible deemed, for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conductfaith, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Company, including financial statementsstatements and regulatory reports, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or the Executive Committee or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or the Executive Committee or any committee of the Board. The knowledge and/or actions, or failure to act, of any director, Executive Committee member, officer, agent or employee of the Company or other covered enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of the preceding sentence this Section 6(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under conduct set forth in this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Taylor Capital Group Inc)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Indemnifiable Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, action as to whether Indemnitee is entitled to be indemnifiedindemnified hereunder, or the court shall presume that the Indemnitee has satisfied the applicable standard and is entitled to an Expense Advance, indemnification and the burden of proving such a defense shall be on the Company or its representative to establish by clear and it shall be presumed convincing evidence that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may benot so entitled. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel Independent Counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination Proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Samples: Indemnification Agreement (Panhandle Oil & Gas Inc)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable Delaware law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company to establish by clear and it convincing evidence that Indemnitee is not so entitled to indemnification. It is the parties' intention that if Indemnitee commences legal proceedings to secure a judicial determination that Indemnitee should be indemnified under this Agreement or Delaware law, the question of Indemnitee's right to indemnification shall be presumed that for the Indemnitee is entitled court to indemnification or to an Expense Advancedecide, as a de novo trial on the case may bemerits and Indemnitee shall not be prejudiced in any way by reason of an adverse determination. Neither In addition, neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable Delaware law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this AgreementDelaware law.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding Claim in advance of its final dispositiondisposition where the required undertaking for any applicable contingent reimbursement has been tendered to the Company) that Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify Indemnitee for the amount claimed. It shall be presumed that Indemnitee was acting in good faith within the scope of his employment or authority, as he could reasonably have perceived it under the circumstances and for a purpose he could reasonably have believed under the circumstances was in or not opposed to the best interests of the Company. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense proof shall be on the Company and it shall be presumed to establish that the Indemnitee is entitled not so entitled. Upon the commencement of legal proceedings by Indemnitee to indemnification or to an Expense Advancesecure a judicial determination that Indemnitee should be indemnified under the Agreement under applicable law, as the case may be. Neither neither the failure of the any Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable law, nor an actual determination by the any Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable such standard of conduct, shall be a defense to the action Indemnitee's claim or create a presumption that the Indemnitee has not met the applicable any particular standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or payment of Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or payment of Expense Advances) under this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with .
(iii) For purposes of this Agreement, the termination of any such claim, action, or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnifiedsuit, or is entitled to proceeding, by judgment, order, settlement (whether with or without court approval and whether with or without an Expense Advance, the burden admission of proving such a defense shall be liability on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure part of the Reviewing Party Indemnitee), conviction, or the Company (including its Boardupon a plea of nolo contendere, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable standard of conductequivalent, shall be a defense to the action or not create a presumption that the Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(iv) For purposes of any determination of good faith under any applicable standard of conductthis Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee relied Indemnitee’s action was based on good faith reliance on the records or books of account of the CompanyCompany or another enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board another enterprise. The term “another enterprise” as used in this Section 4(c)(iv) shall mean any other corporation or any committee partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the BoardCompany as a director, officer, employee or agent. For purposes of this Agreement, references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries, and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company.” The provisions of the preceding sentence this Section 4(c)(iv) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under conduct set forth in this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Maryland General Corporation Law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense proof shall be on the Company and it shall be presumed that the to establish Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beso entitled. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel Independent Legal Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he or she has met the applicable standard of conduct set forth in applicable lawthe Maryland General Corporation Law, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel Independent Legal Counsel, stockholders or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, the entry of any applicable order of probation before judgment or their equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against the Company Xxxxxxx Controls to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company Xxxxxxx Controls to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Xxxxxxx Controls.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers management of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the Company shall fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Xxxxxxx Controls shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Xxxxxxx Controls is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advance, indemnified hereunder the burden of proving such a defense right to indemnification shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beIndemnitee. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against the Company Xxxxxxx Controls to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company Xxxxxxx Controls to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Xxxxxxx Controls.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee Xxxxxxxxxx has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers management of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the Company shall fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Xxxxxxx Controls shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Xxxxxxx Controls is bound by all the provisions of this Agreement.
Appears in 1 contract
Samples: Deed of Indemnification (Johnson Controls International PLC)
Defense to Indemnification, Burden of Proof, and Presumptions. (a) To the maximum extent permitted by applicable law, in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1 of this Agreement, and the Reviewing Party shall place the burden of proof on the Company to overcome that presumption in connection with the making of any determination contrary to that presumption.
(b) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advance, ; provided that the burden of proving such a defense Indemnitee is not entitled to indemnification shall be on the Company and it Company.
(c) The following shall not be presumed defenses to Indemnitee’s claim or create a presumption that the Indemnitee is entitled to indemnification has not met any particular standard of conduct or to an Expense Advance, as the case may be. Neither did not have any particular belief or understanding: (i) the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable lawor had any particular belief or understanding, nor an actual determination by or (ii) the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) Party’s determination that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable such standard of conductconduct or did not have such belief or understanding.
(d) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall be a defense to the action or not create a presumption that the (i) Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or understanding or (ii) that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense right to indemnification shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beIndemnitee. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not MTI Technology Corporation meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for the advancement of Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense proof shall be on the Company and it shall be presumed to establish that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may benot so entitled. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval), conviction or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceedingpermitted by applicable law. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee's action is based on the records or books of account of the Company, an Affiliate, or another enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company Company, an Affiliate, or another enterprise in the course of their duties, or on the advice of legal counsel for the Company Company, an Affiliate, or another enterprise or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company Company, an Affiliate, or another enterprise by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board, an Affiliate, or another enterprise. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or of any director, officer, agent or employee of the Company Company, an Affiliate or another enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (a) To the maximum extent permitted by applicable law, in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1 of this Agreement, and the Reviewing Party shall place the burden of proof on the Company to overcome that presumption in connection with the making of any determination contrary to that presumption.
(b) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advance, ; provided that the burden of proving such a defense Indemnitee is not entitled to indemnification shall be on the Company and it Company.
(c) The following shall not be presumed defenses to Indemnitee’s claim or create a presumption that the Indemnitee is entitled to indemnification has not met any particular standard of conduct or to an Expense Advance, as the case may be. Neither did not have any particular belief or understanding: (i) the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior as to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because whether Indemnitee has met the any particular standard of conduct set forth in applicable lawor had any particular belief or understanding, nor an actual determination by or (ii) the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) Party's determination that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable such standard of conductconduct or did not have such belief or understanding.
(d) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall be a defense to the action or not create a presumption that the (i) Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or understanding or (ii) that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company to establish by clear and it convincing evidence that Indemnitee is not so entitled to indemnification. It is the parties’ intention that if Indemnitee commences legal proceedings to secure a judicial determination that Indemnitee should be indemnified under this Agreement or applicable law, the question of Indemnitee’s right to indemnification shall be presumed that for the Indemnitee is entitled court to indemnification or to an Expense Advancedecide, as the case may be. Neither and neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that the Indemnitee has not met the standards of conduct that make it is not permissible under applicable law the Delaware General Corporation Law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party or otherwise, otherwise as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense right to indemnification shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beIndemnitee. Neither the failure of the Reviewing Party or the Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee he has met the applicable standard of conduct set forth in applicable lawthe Delaware General Corporation Law, nor an actual determination by the Reviewing Party or Company (including its BoardBoard of Directors, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not Xxxxx Xxxx - Indemnification Agreement_v2 meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is not permitted by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnifiedindemnified hereunder, or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and it shall will be presumed that the Indemnitee is entitled to indemnification under this Agreement, and that the Reviewing Party or to an Expense Advancethe Company (including its Board, as independent legal counsel or its stockholders) or any other person or entity challenging such right will have the case may beburden of proving this defense and overcoming Indemnitee’s presumption. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment not subject to appeal, order, settlement (whether with or without court approval), conviction or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceedingpermitted by applicable law. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or of any director, officer, 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
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action Proceeding brought by Indemnitee against the Company to enforce this Agreement (other than an action a Proceeding brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, Proceeding or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholdersmembers) to have made a determination prior to the commencement of such action Proceeding by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholdersmembers) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action Proceeding or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to For purposes of this Agreement, the termination of any Proceeding, by judgment, order, settlement (whether with or without court approval), conviction or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceedingpermitted by applicable law. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or Indemnitee’s Proceeding is based on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, 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
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for 92687367_2 the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnifiedindemnified hereunder, or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and it shall will be presumed that the Indemnitee is entitled to indemnification under this Agreement, and that the Reviewing Party or to an Expense Advancethe Company (including its Board, as independent legal counsel or its stockholders) or any other person or entity challenging such right will have the case may beburden of proving this defense and overcoming Indemnitee’s presumption. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment not subject to appeal, order, settlement (whether with or without court approval), conviction or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceedingpermitted by applicable law. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or of any director, officer, 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
Samples: Investment Agreement (eHealth, Inc.)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, or any determination by the Reviewing Party Company (including by its directors, Independent Counsel, or its stockholders) or otherwise, as to whether the Indemnitee is entitled to be indemnified, or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party or the Company (including by its Boarddirectors, independent legal counsel Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee Ixxxxxxxxx has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including by its Boarddirectors, independent legal counsel Independent Counsel or its stockholders) that the Indemnitee is not entitled to Indemnification indemnification or an Expense Advance or has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent 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
Samples: Indemnification Agreement (ConnectM Technology Solutions, Inc.)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition, subject to Section 4(d)) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by adverse judgment, order, settlement (whether with or without court approval), or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceedingpermitted by applicable law. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or Indemnitee’s action is based on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, 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
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or Expense Advances) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or Expense Advances) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement or a request for Expense Advances in accordance with Section 2(c), and the Company shall have the burden of proof by clear and convincing evidence to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(iii) In connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company by clear and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. convincing evidence.
(iv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel Independent Counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel Independent Counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be admissible as evidence in any such action for any purpose.
(v) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a defense to the action plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(iii) In connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholdersshareholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholdersshareholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be admissible as evidence in any such action for any purpose.
(v) For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a defense to the action plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee has did not met the applicable meet any particular standard of conduct. Neither such failure to conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. .
(iii) In connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Company.
(iv) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes as evidence in any such proceeding. action for any purpose.
(v) For purposes of this Agreement, the termination of any determination of good faith under any applicable standard of conductclaim, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied on the records or books of account of the Companyaction, including financial statementssuit, or on information supplied to Indemnitee proceeding, by the officers of the Company in the course of their dutiesjudgment, order, settlement (whether with or without court approval), conviction, or on the advice upon a plea of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actionsnolo contendere, or failure to actits equivalent, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.not
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action action, suit, litigation, proceeding or arbitration brought by Indemnitee against the Company Mallinckrodt plc to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company Mallinckrodt plc to indemnify Indemnitee for the amount claimed. .
(ii) In connection with any such action, suit, litigation, proceeding or arbitration or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Mallinckrodt plc.
(iii) Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action action, suit, litigation, proceeding or arbitration by Indemnitee that indemnification of the claimant Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall shall, of itself, be a defense to the action action, suit, litigation, proceeding or arbitration or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure .
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, litigation, proceeding or arbitration, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. permitted by applicable law.
(v) For purposes of any determination of good faith under any applicable standard of conductfaith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Companyany Enterprise, including financial statements, or on information supplied to Indemnitee by the officers management of the Company such Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board such Enterprise or on information or records given or reports made to the Company such Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board or any committee of the Boardsuch Enterprise. The provisions of the preceding sentence this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct. conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, or of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the Company shall fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining the any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Mallinckrodt plc shall be precluded from asserting in any action, suit, litigation, proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Mallinckrodt plc is bound by all the provisions of this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. (i) To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a), and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(ii) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify or to make an Advance of Expenses to Indemnitee for the amount claimed. In connection with .
(iii) For purposes of this Agreement, the termination of any such claim, action, suit, proceeding or any determination matter therein, by judgment, order, settlement (whether with or without court approval and whether with or without an admission of liability on the Reviewing Party or otherwisepart of the Indemnitee), as to whether Indemnitee is entitled to be indemnifiedconviction, or is entitled to an Expense Advance, the burden upon a plea of proving such a defense shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel nolo contendere or its stockholders) to have made equivalent, shall not create of itself a determination prior to the commencement of such action by presumption that Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the did not meet any particular standard of conduct set forth in or have any particular belief or that a court has determined that indemnification is not permitted by applicable law, nor an actual determination by the Reviewing Party or Company .
(including its Board, independent legal counsel or its stockholdersiv) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conductthis Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee relied Indemnitee’s action was based on good faith reliance on the records or books of account of the CompanyCompany or another enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or the Board another enterprise. The term “another enterprise” as used in this Section 4(c)(iv) shall mean any other corporation or any committee partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the BoardCompany as a director, officer, employee or agent. For purposes of this Agreement, references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries, and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company.” The provisions of the preceding sentence this Section 4(c)(iv) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under conduct set forth in this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense or determination shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure For purposes of this Agreement, to the fullest extent permitted by law, (1) the termination of any Proceeding, action, suit, or claim, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance permitted by applicable law, and (2) Indemnitee shall be admissible deemed, for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conductfaith, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or other covered enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of the preceding sentence this Section 5(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under conduct set forth in this Agreement.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it the Company is not permissible under prohibited by applicable law for the Company to indemnify from indemnifying Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnifiedindemnified hereunder, or is entitled to an Expense Advance, the burden of proving such a defense shall be on the Company and it shall be presumed presumed, to the fullest extent not prohibited by law, that the Indemnitee is entitled to indemnification under this Agreement, and the burden of proof to establish such defense or to an Expense Advance, as overcome such presumption shall be on the case may beCompany. Neither the failure of the Reviewing Party or the Company (including its the Board, independent legal counsel counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or the Company (including its the Board, independent legal counsel counsel, or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the any applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to have made the determination, nor an actual determination that the Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of this Agreement, the termination of any determination claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of good faith under nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any applicable particular standard of conduct, Indemnitee shall be deemed to conduct or have acted in good faith if Indemnitee relied on the records any particular belief or books of account of the Company, including financial statements, or on information supplied to Indemnitee that a court has determined that indemnification is prohibited by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company or the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreementlaw.
Appears in 1 contract
Samples: Indemnification Agreement (Victory Capital Holdings, Inc.)
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under this Agreement or applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action, action or any determination by the Reviewing Party or otherwise, otherwise as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified under this Agreement, the burden of proving such a defense or determination shall be on the Company and it shall be presumed any decision that the Indemnitee is not entitled to indemnification or to an Expense Advance, as the case may bemust be supported by clear and convincing evidence. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or the Company (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, conduct shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure In making a determination with respect to have made the determination, nor an actual determination that the whether Indemnitee is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any applicable standard of conduct, Indemnitee shall be deemed to have acted in good faith if and in a manner that Indemnitee relied reasonably believed to be in or not opposed to the best interests of the Company, the person or persons or entity making such determination shall presume that Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Any action, or failure to act, by Indemnitee based on Indemnitee’s good faith reliance on the records or books of account of the CompanyCompany and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the written request of the Company as a director, officer, employee, agent or fiduciary (as applicable, the “Enterprise”), including financial statements, or on information supplied to Indemnitee by the officers of the Company Enterprise in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board Enterprise or on information or records given or reports made to the Company Enterprise by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company Enterprise shall not, in and of itself, constitute grounds for an adverse determination with respect to whether Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the Board or any committee best interests of the BoardCompany. The provisions of In addition, the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or of any director, officer, agent or employee of the Company Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful or (ii) otherwise adversely affect the rights of Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein.
Appears in 1 contract
Defense to Indemnification, Burden of Proof, and Presumptions. It To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification (or an Expense Advance) under this Agreement:
(i) the Reviewing Party shall presume that Indemnitee is entitled to indemnification (or an Expense Advance) under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption;
(ii) it shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final dispositiondisposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In Indemnifiable Event asserted by Indemnitee;
(iii) in connection with any such action, or any determination by the Reviewing Party or otherwise, action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified, or is entitled to an Expense Advanceindemnified hereunder, the burden of proving such a defense Indemnitee is not entitled to indemnification under this Agreement shall be on the Company and it shall be presumed that the Indemnitee is entitled to indemnification or to an Expense Advance, as the case may be. Neither Company;
(iv) neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel Independent Counsel or its stockholders) that the Indemnitee is not entitled to Indemnification or an Expense Advance or has had not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. Neither such failure to ;
(v) for purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have made the determination, nor an actual determination any particular belief or that the Indemnitee a court has determined that indemnification is not entitled to indemnification or an Expense Advance shall be admissible for any purposes in any such proceeding. For purposes of any determination of good faith under any permitted by applicable standard of conduct, law;
(vi) Indemnitee shall be deemed to have acted in good faith if Indemnitee relied Indemnitee’s action is based on the records or books of account of the CompanyCompany or any Subsidiary, including financial statementsstatements (other than any such records, books or financial statements for whose preparation Indemnitee was primarily responsible), or on information supplied to Indemnitee by the officers of the Company or any Subsidiary in the course of their duties, or on the advice of legal counsel for the Company or the Board or counsel selected by any committee of the Board Subsidiary or on information or records given or reports made to the Company or any Subsidiary by an independent certified public accountant or by an appraiser, investment banker appraiser or other expert selected with reasonable care by the Company or any Subsidiary. In addition, the Board or any committee of the Board. The provisions of the preceding sentence shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. The knowledge and/or actions, or failure to act, or of any director, officer, agent or employee of the Company or any Subsidiary shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 4(c)(vi) are satisfied, it shall in any event be presumed that Indemnitee has at all times 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 each Subsidiary. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
Appears in 1 contract
Samples: Indemnification Agreement (First Midwest Bancorp Inc)
