Common use of Exclusions Clause in Contracts

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 27 contracts

Samples: Indemnification Agreement (Solaris Oilfield Infrastructure, Inc.), Indemnification Agreement (Solaris Oilfield Infrastructure, Inc.), Indemnification Agreement (Brigham Minerals, Inc.)

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Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, and except as may otherwise be agreed between the Company, on the one hand, and Indemnitee or another indemnitor of Indemnitee, on the other; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(b) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 21 contracts

Samples: Indemnification Agreement (Clovis Oncology, Inc.), Indemnification Agreement (Clovis Oncology, Inc.), Indemnification Agreement (Clovis Oncology, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company Corporation shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company Corporation except with respect to any excess beyond the amount paid under such insurance policy; (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company Corporation by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 20 contracts

Samples: Indemnification Agreement (Ramaco Resources, Inc.), Indemnification Agreement (Ramaco Resources, Inc.), Indemnification Agreement (Ramaco Resources, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 17 contracts

Samples: Indemnification Agreement (EyePoint Pharmaceuticals, Inc.), Indemnification Agreement (Zoomcar Holdings, Inc.), Indemnification Agreement (EyePoint Pharmaceuticals, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, including any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 16 contracts

Samples: Indemnification Agreement (Ranger Energy Services, Inc.), Indemnification Agreement (Ranger Energy Services, Inc.), Indemnification Agreement (Ranger Energy Services, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or any other indemnity provision, except with respect to any excess beyond the amount paid under such insurance policypolicy or such other indemnity provision; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 14 contracts

Samples: Indemnification Agreement (New Atlas HoldCo Inc.), Indemnification Agreement (Atlas Energy Solutions Inc.), Indemnification Agreement (Atlas Energy Solutions Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 14 contracts

Samples: Indemnification Agreement (Frontier Group Holdings, Inc.), Indemnification Agreement (Frontier Group Holdings, Inc.), Indemnification Agreement (ViewRay, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 14 contracts

Samples: Indemnification Agreement (Thayer Ventures Acquisition Corp), Indemnification Agreement (ForgeRock, Inc.), Indemnification Agreement (Spire Global, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or any Sponsor Entity, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee or any Sponsor Entity against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 13 contracts

Samples: Indemnification Agreement (Fmsa Holdings Inc), Indemnification Agreement (Fmsa Holdings Inc), Indemnification Agreement (Fmsa Holdings Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company Corporation shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) subject to Section 14, for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act (as defined in Section 1(a) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company Corporation by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Corporation by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d13(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 13 contracts

Samples: Indemnification Agreement (OptiNose, Inc.), Indemnification Agreement (OptiNose, Inc.), Indemnification Agreement (OptiNose, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any Claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess Losses beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d) Sections 5 and 24 of this Agreement, in connection with any Proceeding (or any part of any Proceeding) Claim initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) Claim initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) Claim prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 7 contracts

Samples: Indemnification Agreement (Dell Technologies Inc.), Stockholders Agreement (Dell Technologies Inc), Stockholders Agreement (Dell Technologies Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy that may be adopted by the rules and regulations Board or a committee of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;Board; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (ii) such payment arises in connection with any mandatory counterclaim or cross-claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding) or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 6 contracts

Samples: Indemnification Agreement (Surf Air Mobility Inc.), Indemnification Agreement (Surf Air Mobility Inc.), Indemnification Agreement (Cepton, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 6 contracts

Samples: Indemnification Agreement (Cue Health Inc.), Indemnification Agreement (Inozyme Pharma, Inc.), Indemnification Agreement (Akouos, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ; or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 6 contracts

Samples: Indemnification Agreement (PSQ Holdings, Inc.), Indemnification Agreement (Xilio Therapeutics, Inc.), Indemnification Agreement (Werewolf Therapeutics, Inc.)

Exclusions. Notwithstanding any provision in this AgreementAgreement [but subject to Section 15(e), however], the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) (for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 5 contracts

Samples: Indemnification Agreement (Inhibrx, Inc.), Indemnification Agreement (Inhibrx, Inc.), Indemnification Agreement (Inhibrx, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Exchange Commission pursuant Board, including but not limited to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;any such policy adopted to comply with stock exchange rules or listing requirements; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 4 contracts

Samples: Indemnification Agreement (Zeo Energy Corp.), Indemnification Agreement (ESGEN Acquisition Corp), Indemnification Agreement (Flewber Global Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the Xxxxxxxx-Xxxxx ActAct ”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, including any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 4 contracts

Samples: Indemnification Agreement (Ranger Energy Services, Inc.), Indemnification Agreement (Ranger Energy Services, Inc.), Indemnification Agreement (Ranger Energy Services, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 4 contracts

Samples: Merger Agreement (Nauticus Robotics, Inc.), Indemnification Agreement (Expensify, Inc.), Indemnification Agreement (Harmony Biosciences Holdings, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act"), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 4 contracts

Samples: Indemnification Agreement (Maxar Technologies Inc.), Indemnification Agreement (Cti Biopharma Corp), Indemnification Agreement (Eplus Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company extent provided in Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) and except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 4 contracts

Samples: Indemnification Agreement (Imago BioSciences, Inc.), Indemnification Agreement (Sana Biotechnology, Inc.), Indemnification Agreement (Berkeley Lights, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 4 contracts

Samples: Indemnification Agreement (Fly-E Group, Inc.), Indemnification Agreement (Coya Therapeutics, Inc.), Indemnification Agreement (Coya Therapeutics, Inc.)

Exclusions. Notwithstanding any provision in of this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemniteemake any indemnity (and, orwith respect to clause (c) below, advancement of expenses) in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as hereinafter defined) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;or (dc) except as provided in Section 12(d) 13 of this Agreement, in connection with any Proceeding action, suit or proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, including any Proceeding action, suit or proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors authorized the Proceeding action, suit or proceeding (or any part of any Proceedingthereof) prior to its initiation, initiation or (ii) the Company provides the indemnificationindemnification or advancement of expenses, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 3 contracts

Samples: Indemnification Agreement (Exterran Corp), Indemnification Agreement (Archrock, Inc.), Indemnification Agreement (Exterran Corp)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 3 contracts

Samples: Indemnification Agreement (EUDA Health Holdings LTD), Indemnification Agreement (EUDA Health Holdings LTD), Indemnification Agreement (Skillz Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 3 contracts

Samples: Indemnification Agreement (Semper Paratus Acquisition Corp), Indemnification Agreement (ZyVersa Therapeutics, Inc.), Indemnification Agreement (Nextgen Healthcare, Inc.)

Exclusions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment actually has actually been made to received by or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid actually received under such any insurance policypolicy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Fund Indemnitors set forth in Section 15(d) below; (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as otherwise provided in Section 12(dSections 14(d)-(e) of this Agreementhereof, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (ed) if a final decision by a court having jurisdiction in to the matter that is not subject to appeal shall determine that extent such indemnification is not lawfulpayment would violate Section 402 of the Xxxxxxxx-Xxxxx Act.

Appears in 3 contracts

Samples: Indemnification Agreement (Blue Bird Corp), Indemnity Agreement (Blue Bird Corp), Purchase Agreement (Hennessy Capital Acquisition Corp.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company except with respect extent such payment is insufficient to any excess beyond satisfy the amount paid under such insurance policy;Indemnitee’s right to indemnification hereunder; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 3 contracts

Samples: Indemnification Agreement (Solid Biosciences, LLC), Indemnification Agreement (Installed Building Products, Inc.), Indemnification Agreement (Annie's, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity or hold harmless Indemnitee, orprovide any benefit to Indemnitee under this Agreement or otherwise, in the case connection with any Proceeding (or any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being otherwise authorized in Section 12(d), (iv) brought by Indemnitee to assert, interpret or enforce discharge Indemnitee’s rights fiduciary responsibilities, whether under this Agreement (for the avoidance of doubtERISA or otherwise, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bv) having made any counterclaim (whether permissive otherwise required by applicable law or mandatory) in connection with any claim not initiated by Indemnitee)the Company’s certificate of incorporation or bylaws; or (e) if prohibited by applicable law as determined in a final decision by a court having jurisdiction in the matter that is adjudication not subject to appeal shall determine that such indemnification is not lawfulfurther appeal.

Appears in 3 contracts

Samples: Indemnification Agreement (Yext, Inc.), Indemnification Agreement (Nutanix, Inc.), Indemnification Agreement (Nutanix, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained procured by the Company Company, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 13 hereof; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which the Indemnitee has consented); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-SOX Act or Section 954 of the Xxxx–Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under arrangements to which the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActIndemnitee has consented); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation), (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being otherwise authorized in Section 12(d) or (iv) with respect to proceedings brought by Indemnitee to assert, interpret establish or enforce Indemnitee’s rights a right to indemnification or advancement under this Agreement (for or under any other agreement, provision in the avoidance Bylaws or Certificate of doubtIncorporation or applicable law, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision by a court having of competent jurisdiction in the matter that is not subject to appeal shall determine determines that such indemnification is not lawfulprohibited by applicable law in a final judgment from which there is no further right of appeal.

Appears in 3 contracts

Samples: Indemnification Agreement (loanDepot, Inc.), Indemnification Agreement (ATI Intermediate Holdings, LLC), Indemnification Agreement (Chewy, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or Section 904 of the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act, or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 3 contracts

Samples: Indemnification Agreement (Arconic Rolled Products Corp), Indemnification Agreement (Xo Group Inc.), Indemnification Agreement (Arconic Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) [except as provided in Section 14,] for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) or in respect of claw-back provisions promulgated under the rules and regulations for any reimbursement of the Securities and Exchange Commission pursuant Company by Indemnitee of any bonus or other incentive-based or equity-based compensation to the extent such reimbursement is required under Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActAct or any rules adopted or promulgated thereunder or in connection therewith, but in any case only if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedinge) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (ef) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (FireEye, Inc.), Indemnification Agreement (Palo Alto Networks Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (provided, that any counterclaim or cross claim brought by Indemnitee with respect to a Proceeding shall not be considered a “Proceeding (or any part of any Proceeding) initiated by Indemnitee” for the purposes of this Section 9(c)), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Banc of California, Inc.), Indemnification Agreement (First Pactrust Bancorp Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company extent provided in Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) and except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision eligible for; (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification & Liability (CARGO Therapeutics, Inc.), Indemnification Agreement (CARGO Therapeutics, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for expenses incurred in connection with an action or suit to which Indemnitee is threatened to be made a party but does not become a party unless the incurrence of such expenses was authorized by or under the authority of the Board; (c) for expenses or losses with respect to proceedings initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except (i) proceedings for indemnification or advancement of expenses from the Company under this Agreement pursuant to Section 7, or (ii) where the Board has authorized the proceeding prior to its initiation; or (d) for (i) 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 (the “Exchange Act”), or similar provisions of state statutory law authority or common law; , or (cii) for any reimbursement of to the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), ) or the payment to the Corporation Company of profits arising from the purchase and or sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 2 contracts

Samples: Indemnification Agreement (Ekso Bionics Holdings, Inc.), Indemnification Agreement (Ekso Bionics Holdings, Inc.)

Exclusions. Notwithstanding 1.1 In addition to any provision other limitations set out in this Agreementagreement, the Company Sellers shall not be obligated liable in respect of a Claim (i) for the indemnification under this Agreement clause 9.2 to indemnify the extent that the matter or hold harmless Indemnitee, or, circumstance giving rise to that Claim was taken into account in the case Accounts or the Completion Statement by way of an express and full provision; or (aii) to the extent that the matter or circumstance giving rise to a Claim in respect of the Warranties was fully and (d), fairly disclosed in the Disclosure Letter. 1.2 The Sellers shall not be liable in respect of a Claim to advance Expenses to Indemniteethe extent that the relevant liability would not have arisen but for: (a) a change in legislation, or the withdrawal of any extra-statutory concession previously made by any Taxation Authority, after the date of this agreement (whether or not the change or withdrawal purports to be effective retrospectively in whole or in part); or (b) a change after Completion in GAAP and the accounting policies adopted by the Group Company. 1.3 The Sellers shall not be liable in respect of a Claim: (a) with respect to losses for taxes on the basis of any assessment which involves merely a delay in receiving a taxable income or in incurring deductible expenses, it being agreed that Sellers will pay to the Purchaser all fines, penalties or interest incurred by the Company as a result of the above delay; or (b) to the extent that losses (a) shall be reduced by the value of any net tax benefit or tax savings realized by the Purchaser or the Group Company as a result of the occurrence of the relevant losses suffered by the Group Company as the case may be or (b) shall be reduced by any payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Purchaser or the Company except in application of insurance policies or any other third party; or (c) with respect to any excess beyond the amount paid under such insurance policy; (b) tax adjustment relating to a retrievable tax, except for an accounting of profits made from the purchase and sale (all fines, penalties or sale and purchase) interest incurred by Indemnitee of securities of the Company within the meaning as a result of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;tax adjustment; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant respect to the powers vested value of the fixed assets as recorded in the Company under applicable law Accounts or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Completion Statement; or (e) if with respect to the unavailability of any tax loss carry forwards. 1.4 In order to avoid any double indemnification, the same Loss occurring as a final decision by a court having jurisdiction result of breach of more than one representation and warranty shall only be indemnified once. A liability which has been taken into account in the matter that is Completion Statement shall not subject be claimed by the Purchaser again pursuant to appeal shall determine that such indemnification is not lawfulother provisions of this agreement.

Appears in 2 contracts

Samples: Agreement for the Sale and Purchase of Share Capital (Research Pharmaceutical Services, Inc.), Agreement for the Sale and Purchase of Share Capital (Research Pharmaceutical Services, Inc.)

Exclusions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnification provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof), or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), ) or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized authorizes the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law law, or (iiiiv) such Proceeding is being brought by Indemnitee to assert, interpret establish or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubtAgreement, Indemnitee shall not be deemedor any other statute or law, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulotherwise as required under applicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (Associated Capital Group, Inc.), Indemnification Agreement (Gabelli Securities Group, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained procured by the Company Company, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 13 hereof; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which the Indemnitee has consented); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-SOX Act or Section 954 of the Xxxx–Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under arrangements to which the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActIndemnitee has consented); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation), (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (iii) otherwise authorized in Section 12(d), (iv) with respect to proceedings brought to establish or enforce a right to indemnification or advancement under this Agreement or under any other agreement, provision in the Bylaws or Certificate of Incorporation or applicable law or (iiiv) such Proceeding is being brought otherwise required by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)applicable law; or (e) if a final decision by a court having of competent jurisdiction in the matter that is not subject to appeal shall determine determines that such indemnification is not lawfulprohibited by applicable law in a final judgment from which there is no further right of appeal.

Appears in 2 contracts

Samples: Indemnification Agreement (Clearwater Analytics Holdings, Inc.), Indemnification Agreement (Shoals Technologies Group, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company Corporation shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company Corporation except with respect to any excess beyond the amount paid under such insurance policy;; ​ (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company Corporation by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 2 contracts

Samples: Indemnification Agreement (Ramaco Resources, Inc.), Indemnification Agreement (Ramaco Resources, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act Act, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of (i) any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect (ii) any compensation pursuant to any compensation recoupment or clawback policy adopted by the Company’s board of claw-back provisions promulgated under directors or the rules and regulations compensation committee of the Securities and Company’s board of directors, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 11(d) or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsectionparagraph, to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulDGCL or other applicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (NKGen Biotech, Inc.), Indemnification Agreement (TriSalus Life Sciences, Inc.)

Exclusions. Notwithstanding any provision in this Agreement (including Section 6 of this Agreement), the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) [except as provided in Section 15 of this Agreement,] for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act Act, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) or in respect of claw-back provisions promulgated under the rules and regulations for any reimbursement of the Securities and Exchange Commission pursuant Company by Indemnitee of any bonus or other incentive-based or equity-based compensation to the extent such reimbursement is required under Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActAct or any rules adopted or promulgated thereunder or in connection therewith, but in any case only if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedinge) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes otherwise authorized in Section 12 of this subsectionAgreement, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (ef) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (GLAUKOS Corp), Indemnification Agreement (GLAUKOS Corp)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity or hold harmless Indemnitee, orprovide any benefit to Indemnitee under this Agreement or otherwise, in the case connection with any Proceeding (or any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive otherwise required by applicable law or mandatory) in connection with any claim not initiated by Indemnitee)the Company’s bylaws; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (BioCardia, Inc.), Indemnification Agreement (CareDx, Inc.)

Exclusions. Notwithstanding any provision in of this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (bi) 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 Exchange Act or similar provisions of state statutory law or common law; law or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including or policies adopted by the Company from time to time pursuant to any settlement arrangements) or in respect Section 954 of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (db) except as otherwise provided in Section 12(dSections 5.01(d) and (e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such the Company joins in or consents to the initiation of the Proceeding is being brought by Indemnitee to assert, interpret (or enforce Indemnitee’s rights under this Agreement (for any part of the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (AProceeding) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)after its initiation; or (ec) if a final decision by a court having jurisdiction in to the matter that is not subject to appeal shall determine that such indemnification is not lawfulextent the payment would violate Section 402 of the Xxxxxxxx-Xxxxx Act.

Appears in 2 contracts

Samples: Indemnification Agreement (Applied Dna Sciences Inc), Indemnification Agreement (G Iii Apparel Group LTD /De/)

Exclusions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; ; or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d15(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding) or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement, Indemnification Agreement (Quality Systems, Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) [except as provided in Section 15,] for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) or in respect of claw-back provisions promulgated under the rules and regulations for any reimbursement of the Securities and Exchange Commission pursuant Company by Indemnitee of any bonus or other incentive-based or equity-based compensation to the extent such reimbursement is required under Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActAct or any rules adopted or promulgated thereunder or in connection therewith, but in any case only if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedinge) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (ef) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 2 contracts

Samples: Indemnification Agreement (Pfenex Inc.), Indemnification Agreement (Inogen Inc)

Exclusions. Notwithstanding any provision in of this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (bi) 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 Exchange Act or similar provisions of state statutory law or common law; law or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (db) except as otherwise provided in Section 12(d) Sections 6.01(e), prior to a Change of this AgreementControl, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (other than any cross claim or counterclaim asserted by the Indemnitee), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such the Proceeding is being a compulsory counterclaim brought by Indemnitee in response to assert, interpret or enforce Indemnitee’s rights a Proceeding otherwise indemnifiable under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Agreement; or (ec) if a final decision by a court having jurisdiction in for which 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 matter that is not subject to appeal shall determine that such indemnification is not lawfulamount paid under any insurance policy or other indemnity provision.

Appears in 2 contracts

Samples: Indemnification Agreement (BRP Group, Inc.), Indemnification Agreement (Goosehead Insurance, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any claim: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;or (dc) except as provided in Section 12(d13(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (NTR Acquisition Co.), Indemnification Agreement (GSC Acquisition Co)

Exclusions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment actually has actually been made to received by or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid actually received under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as otherwise provided in Section 12(dSections 14(d)-(e) of this Agreementhereof, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (ed) if a final decision by a court having jurisdiction in to the matter that is not subject to appeal shall determine that extent such indemnification is not lawfulpayment would violate Section 402 of the Xxxxxxxx-Xxxxx Act.

Appears in 2 contracts

Samples: Indemnity Agreement (Tower Automotive, LLC), Indemnification Agreement (Tower Automotive, LLC)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any claim: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such insurance policy;policy or other indemnity provision, or (b) for (i) 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 Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;or (dc) except as provided in Section 12(d13(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnity Agreement (Sidhu Special Purpose Capital Corp.), Indemnification Agreement (HCM Acquisition CO)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Shapeways Holdings, Inc.), Indemnification Agreement (EyePoint Pharmaceuticals, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any Claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess Losses beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d) Sections 5 and 23 of this Agreement, in connection with any Proceeding (or any part of any Proceeding) Claim initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) Claim initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) Claim prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Pivotal Software, Inc.), Indemnification Agreement (SecureWorks Corp)

Exclusions. Notwithstanding any provision in this Agreement, The Beneficiary acknowledges that the Company shall not be obligated under this Agreement required to indemnify or hold harmless Indemnitee, or, in the case of (a) Beneficiary for Losses and (d), Expenses incurred by a Beneficiary with respect to advance Expenses to Indemniteethe following Claims: (ai) for which payment has actually been made any Claim relating to or on behalf of Indemnitee under any insurance policy obtained by remuneration paid to the Company except with respect to any excess beyond the amount paid under Beneficiary, if it shall be determined that such insurance policyremuneration was not due; (bii) any Claim for which a judgment is rendered against the Beneficiary for an accounting of profits made from the purchase or sale of, or the procurement to purchase or sell, securities of the Company pursuant to xxxxxxx xxxxxxx laws or regulations; (iii) any Claim which is based on the Beneficiary’s willful or gross misconduct or on a fraud or a fraudulent misrepresentation, intentional or fraudulent (or deemed to be so) misconduct, whether the Beneficiary has acted alone or as an accomplice if it should be finally determined that the Beneficiary is guilty of such misconduct; (iv) any Claim which is based on the Beneficiary’s criminal actions; (v) any Claim for (1) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee the Beneficiary of securities of the Company within the meaning of Section 16(b) of the Exchange Act or any similar successor statute or any similar provisions of state statutory law or common law; , or (c2) for any reimbursement of the Company by Indemnitee the Beneficiary of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any comparable law, or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee the Beneficiary of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct or any comparable law); provided, if Indemnitee however, that to the fullest extent permitted by applicable law and to the extent the Beneficiary is held liable therefor (including pursuant successful on the merits or otherwise with respect to any settlement arrangements) or in respect of claw-back provisions promulgated under such Claim, the rules Expenses actually and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, reasonably incurred by Indemnitee in connection with any Proceeding such Claim shall be deemed to be Expenses that are subject to indemnification hereunder; (vi) any Claim which is based on a Beneficiary’s fault committed outside of the scope of his/her duties as a Director or Officer; or (vii) any part Claim which is based on the Beneficiary’s actions taken in his or her personal capacity (i.e. not within his or her capacities as a Director or Officer of any Proceeding) initiated the Company). The Beneficiary further acknowledges that the D&O Insurance Policy contains or may contain similar limitations on coverage for Losses or Expenses incurred by Indemniteea Beneficiary, including any Proceeding (or any part of any Proceeding) initiated by Indemniteein each case with respect to Indemnifiable Claims, against the Company or its directors, officers, employees or other indemnitees, unless and that it does not cover Claims (i) pending, if any, at the Board authorized date this Offer is accepted and signed by the Proceeding (or any part of any Proceeding) prior to its initiationrelevant Beneficiary, (ii) which arise from the Company provides settlement of any action or Claim without the indemnificationCompany’s written consent or, in its sole discretiongenerally, pursuant that cannot be insured under applicable laws and regulations; provided that the terms of the D&O Insurance Policy shall determine whether insurance coverage is available to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) Beneficiary in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction Indemnifiable Claim, and that any limitations, restrictions or exclusions contained in the matter Insurance Policy that is are not mandated by applicable law shall not relieve the Company of its obligation to provide indemnification to the Beneficiary for Losses and Expenses in each case with respect to Indemnifiable Claims to the fullest extent permitted by applicable laws and regulations and subject to appeal shall determine that such indemnification is not lawfulthe terms and conditions of this Offer.

Appears in 2 contracts

Samples: Governance Agreement, Governance Agreement (Destination Maternity Corp)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify make any indemnification payment or hold harmless Indemnitee, or, advancement to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) if the action or omission of the Indemnitee was undertaken with deliberate intent to cause injury to the Company or Enterprise or undertaken with reckless disregard for the best interests of the Company or Enterprise; or (c) for (i) 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(b14(b) of the Exchange Act (as defined in Section 2(b)) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Company under Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act)) or (iii) any reimbursement of the Company by Indemnitee of any compensation under any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, if Indemnitee is held liable therefor (including pursuant but not limited to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to under the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Nano Magic Holdings Inc.), Indemnification and Advancement Agreement (Nano Magic Holdings Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSarbxxxx-Xxxxx Act Xxx of 2002 (the “XxxxxxxxSarbxxxx-Xxxxx ActXxx”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSarbxxxx-Xxxxx Act), if Xxx) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Agilon Health, Inc.), Indemnification Agreement (Agilon Health, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless make any indemnification payment in connection with any claim made against Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) : for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy; policy or other indemnity provision; or for (bi) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) ; or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Ch2m Hill Companies LTD), Indemnification Agreement (Ch2m Hill Companies LTD)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnification payment or hold harmless Indemnitee, or, Expense Advance in connection with any claim involving the case of (a) and (d), to advance Expenses to IndemniteeOfficer: (ai) for which payment has actually been made to or on behalf of Indemnitee the Officer under any insurance policy obtained by the Company or other indemnity or advancement of expenses provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity or advancement of expenses provision; or (bii) for (A) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee the Officer of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”), or similar provisions of state statutory law or common law; , (cB) for any reimbursement of the Company by Indemnitee the Officer of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee the Officer from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee the Officer of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor ) or (including C) any reimbursement of the Company by the Officer of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (diii) except as provided in Section 12(d) 7 of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemniteethe Officer, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, the Officer against the Company or its directors, officers, employees or other indemnitees, unless (iA) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (iiB) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by the Officer in any Proceeding (or any part of any Proceeding), or (C) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 2 contracts

Samples: Indemnification Agreement (Cavco Industries Inc.), Indemnification Agreement (Cavco Industries Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless make any indemnification payment in connection with any claim involving Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) : for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy; policy or other indemnity provision; or for (bi) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) ; except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), (iii) indemnification is expressly required by the Delaware General Corporate Law (“DGCL”), (iv) there has been a Change of Control, or (v) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law law; or for (i) circumstances in which indemnity is expressly prohibited under the DGCL, or (iiiii) such Proceeding is being brought by Indemnitee to assert, interpret for any acts or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall omissions or transactions from which a director may not be deemed, for purposes relieved of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in liability under the matter that is not subject to appeal shall determine that such indemnification is not lawfulDGCL.

Appears in 1 contract

Samples: Indemnification Agreement (Clean Energy Fuels Corp.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company except with respect extent such payment is insufficient to any excess beyond satisfy the amount paid under such insurance policy;Indemnitee’s right to indemnification hereunder; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (ed) if a final decision by a court having jurisdiction in to the matter that is not subject to appeal shall determine that extent such indemnification is not lawfulexceeds the limitations on indemnification under the Investment Company Act of 1940, as amended.

Appears in 1 contract

Samples: Indemnification Agreement (Fifth Street Finance Corp.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (American Airlines Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company 2.1. The Seller shall not be obligated liable under this Agreement to indemnify paragraphs ‎1.1, ‎1.2, ‎1.4, ‎1.5 or hold harmless Indemnitee, ‎1.6 (or, as appropriate, the liability of the Seller shall be reduced) in respect of any liability of the case of (a) and (d), Company to advance Expenses to Indemniteethe extent that: (a) for which specific provision or reserve in respect of such liability was made in the balance sheet in the Closing Statement (excluding any provision or reserve made in respect of deferred Tax) or such liability was paid before Closing and such payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by was reflected in the Company except with respect to any excess beyond the amount paid under such insurance policy;Closing Statement; or (b) for an accounting the liability is increased as a result only of profits made from the purchase any increase in rates of Tax which is announced and sale (comes into force after Closing with retrospective effect or sale of any change in law which is announced and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law;comes into force after Closing with retrospective effect; or (c) the liability would not have arisen but for any reimbursement a voluntary act, omission or transaction of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation after Closing or of the Buyer or any profits realized by Indemnitee from the sale of securities member of the CorporationBuyer’s Tax Group except where such act, omission or transaction is: (i) carried out or effected pursuant to a legally binding obligation entered into on or before Closing; or (ii) required by law or any regulatory, financial reporting or accounting practice or requirement; or (iii) carried out with the consent of the Seller; or (iv) in the ordinary course of business of the Company (or, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement appropriate, of the Corporation pursuant to Section 304 Buyer or member of the Xxxxxxxx-Xxxxx Act of 2002 Buyer’s Tax Group); or (v) one that the “Xxxxxxxx-Xxxxx Act”), Buyer or the payment party in question could not foresee or could not reasonably have foreseen would give rise to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor that liability; or (including pursuant to any settlement arrangementsvi) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;one that could not reasonably have been avoided; or (d) except as provided in Section 12(drecovery (less costs and expenses of recovery) has been made by the Buyer under the Seller’s Warranties or under any other provision of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if the amount of such liability is reduced, eliminated or offset in accordance with paragraph ‎9; or (f) such liability arises, or is increased, as a final decision by result of a court having jurisdiction change in the matter that law, regulation, directive or other requirement having the force of law occurring after Closing; or (g) any Relief of the Company arising in respect of an Event occurring prior to, or period ending on or prior to, Closing other than a Buyer’s Relief is available to the Company to reduce or eliminate such liability; or (h) such liability would not subject have arisen but for the failure or omission on the part of the Company after Closing otherwise than at the direction of the Seller to appeal shall determine that make any such indemnification valid claim, election, surrender or disclaimer, or to give any such notice or consent to do any other such thing, the making, giving or doing of which was required by the Seller in respect of periods or matters for which the Seller has conduct under paragraph ‎6 or, in respect of periods or matters for which the Seller does not have conduct, the making, giving or doing of which was taken into account in the preparation of the Closing Statement and details of which are given to the Buyer in reasonable time. 2.2. The provisions of paragraph ‎2.1 do not apply to any claim by the Buyer against the Seller which arises or is not lawfuldelayed as a result of fraud, dishonesty, wilful misconduct or wilful concealment by the Seller.

Appears in 1 contract

Samples: Share Purchase Agreement (GAIN Capital Holdings, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnification payment or hold harmless Indemnitee, or, advance amounts for any Expenses in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made or amounts have actually been advanced to or on behalf of Indemnitee under any insurance policy obtained by the Company policy, contract, agreement or otherwise, except with respect to any excess beyond the amount paid under such any insurance policy, contract, agreement or otherwise; (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (dc) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 15(d) of this Agreement, or (ii) the Charter, the By-laws, a resolution of the stockholders entitled to vote generally in the election of directors or of the Board authorized or an agreement approved by the Proceeding Board to which the Company is a party expressly provide otherwise (each of the Proceedings described in clauses (i) and (ii) of this Section 9(c), or any part of any each such Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by a “Permitted Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by IndemniteeInitiated Proceeding”); or (ed) if a final decision by a court having jurisdiction Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the matter that is not subject to appeal shall determine that such indemnification is not lawfulIndemnitee’s Corporate Status.

Appears in 1 contract

Samples: Indemnification Agreement (Preferred Apartment Communities Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such paid; provided, however, that payment made to Indemnitee pursuant to an insurance policy;policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement. (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 12 (a) or 12(d) hereof or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsection, Section 7(d) to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Xxxxxxxxxx; or (e) if a final decision prohibited by applicable law as determined by a court having of competent jurisdiction in the matter that is a final adjudication not subject to appeal shall determine that such indemnification is not lawfulfurther appeal.

Appears in 1 contract

Samples: Indemnification Agreement (Carmot Therapeutics Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company extent provided in Section 16(b) and except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; provided, however, that any payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at their own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Atlassian Corp)

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Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the XxxxDxxx-Xxxxx Fxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, or if Indemnitee was nominated to the Board by one or more of the Grey Rock Entities, such Grey Rock Entity, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, or if Indemnitee was nominated to the Board by one or more of the Grey Rock Entities, such Grey Rock Entity, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not permitted by the DGCL or would otherwise not be lawful.

Appears in 1 contract

Samples: Indemnification Agreement (Granite Ridge Resources, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) Except as provided for in Section 18 hereof, for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such paid; provided, however, that payment made to Indemnitee pursuant to an insurance policy;policy purchased and maintained by Indemnitee at Indemnitee’s own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement. (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 12 (a) or 12(d) hereof or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsection, Section 7(d) to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Xxxxxxxxxx; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Rubrik, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, consultants, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Enliven Therapeutics, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess amount beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; law if it is finally adjudged by a court of competent jurisdiction that such an accounting of profits is required, or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the purchase or sale of securities of the CorporationCompany, as required in each case under the Exchange Act Act, the rules of any securities exchange on which the Company’s securities are listed or otherwise applicable law (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Sarbanes Oxley Act of or 2002 (the “Xxxxxxxx-Xxxxx Sarbanes Oxley Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of or securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Sarbanes Oxley Act), ) if Indemnitee it is held liable therefor (including pursuant to finally adjudged by a court of competent jurisdiction that any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actsuch reimbursement is required; (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assertlaw; provided, interpret or enforce Indemnitee’s rights under this Agreement (that for the avoidance of doubt, Indemnitee this clause (c) shall not be deemed, for purposes of this subsection, apply to have initiated counterclaims or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated asserted by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by an action brought against Indemnitee); or (ed) if a final decision for which payment is prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Lbi Media Holdings Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 1 contract

Samples: Indemnification Agreement (Brigham Minerals, Inc.)

Exclusions. Notwithstanding any provision 3.1 The covenants contained in this Agreement, paragraph 2 shall not apply and the Company Buyer shall not be obligated entitled to bring a Covenant Claim under them or a claim under the Tax Warranties to the extent that: 3.1.1 identifiable provision or reserve was made for such liability in the Completion Accounts (excluding the notes to the Completion Accounts and excluding any provision or reserve made in respect of deferred Tax); 3.1.2 the liability in question would not have arisen but for any change in legislation relating to, or an increase in the rates of, Tax introduced or made in either case after the date of this Agreement whether or not with retrospective effect save where: a) such legislation or increase has been made public prior to Completion; b) such change has the effect of countering, retrospectively, any scheme or arrangement, the sole or main purpose (or one of the main purposes) of which was the avoidance of Tax; or c) the change is a change to the applicable rate of interest accruing on underpaid Tax; 3.1.3 such liability would not have arisen but for any voluntary act or omission of a Group Company or the Buyer or any member of the Buyer’s Tax Group after Completion outside the ordinary course of business of the relevant Group Company which the Buyer knew (or ought reasonably to know) would give rise to such liability but excluding any act: a) carried out pursuant to a legally binding obligation of a Group Company entered into prior to Completion; b) carried out pursuant to an obligation imposed by any law, regulation or requirement having the force of law; c) taking place with the written consent of the Seller; d) consisting of a disclosure to a Tax Authority which the Buyer (acting reasonably) considers is necessary to be made pursuant to any law or published guidance or practice of a Tax Authority; e) consisting of the payment of stamp duty in respect of any document executed prior to Completion or the bringing into the United Kingdom of any document executed prior to Completion; or f) any act permitted by paragraph 6 (Disputes and conduct of claim for tax) or paragraph 11 (Management of pre-completion tax affairs); 3.1.4 such liability was discharged on or before Completion and such discharge was reflected in the Completion Accounts; 3.1.5 payment has already been made in respect of such liability under this Agreement or pursuant to indemnify or hold harmless Indemnitee, or, in the case a statutory right of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policyrecovery; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any 3.1.6 such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or liability arises in respect of claw-back provisions promulgated under the rules actual (as opposed to deemed) earning or receipt for any Taxation purposes of any income, profit or gain which is not recognised in the Completion Accounts, but which should have been recognised in the Completion Accounts; 3.1.7 such liability would not have arisen but for any Group Company changing any of its accounting policies, bases or practices (including the date to which the Group Company prepares its accounts, the treatment of timing differences, the bases on which the Group Company values its assets and regulations of the Securities and Exchange Commission pursuant Taxation reporting practice) after Completion except to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actextent that such change is necessary in order to comply with generally accepted accounting principles or other relevant financial or accounting standards applicable to the relevant Group Company prior to Completion; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (3.1.8 such liability would not have arisen or any would have been reduced or eliminated but for the failure or omission on the part of any Proceeding) initiated Group Company or the Buyer after Completion to make any claim, election, surrender or disclaimer or to give any notice or consent or to do any other thing, the making, giving or doing of which was taken into account in the preparation of the Completion Accounts; 3.1.9 such liability would not have arisen but for the withdrawal or amendment by Indemnitee, including any Proceeding (the Buyer or any part Group Company after Completion of any Proceeding) initiated election, claim, surrender, disclaimer, notice or consent validly made by Indemnitee, against a Group Company prior to Completion in relation to any Relief; 3.1.10 such liability is a liability to interest and/or penalties which would not have arisen but for any failure or delay by the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (Buyer or any part of Group Company in paying over to any Proceeding) prior to its initiation, (ii) Taxation Authority any payment previously made by the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights Seller under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Agreement; or 3.1.11 any Relief (eother than a Buyer’s Relief) if a final decision by a court having jurisdiction in is available (or is made available at no cost to the matter that is not subject relevant Group Company) to appeal shall determine that such indemnification is not lawfuleliminate or reduce the liability.

Appears in 1 contract

Samples: Share Purchase Agreement (Mueller Industries Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) Except as provided for in Section 19 hereof, for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such paid; provided, however, that payment made to Indemnitee pursuant to an insurance policy;policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement. (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 12 (a) or 12(d) hereof or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsection, Section 7(d) to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Xxxxxxxxxx; or (e) if a final decision prohibited by applicable law as determined by a court having of competent jurisdiction in the matter that is a final adjudication not subject to appeal shall determine that such indemnification is not lawfulfurther appeal.

Appears in 1 contract

Samples: Indemnification Agreement (ACELYRIN, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, including any Proceeding (or any part of any Proceeding) initiated by IndemniteeIndemnitee or, if Indemnitee was nominated to the Board by one or more of the Sponsor Entities, such Sponsor Entity, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (BA) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 1 contract

Samples: Indemnification Agreement (Ranger Energy Services, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if ; or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Ev Transportation Services, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company extent provided in Section 16(b) of this Agreement and except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) fof this Agreement) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Bandwidth Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall is not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment to Indemnitee in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company extent provided in Section 15(b) of this Agreement and except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including, but not limited, to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation (iiit being understood and agreed that such authorization or consent shall not be unreasonably withheld in connection with any compulsory counterclaim brought by Indemnitee in response to any Proceeding otherwise indemnifiable under this Agreement) or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification and Advancement Agreement (Fluence Energy, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Director Indemnification Agreement (Reign Sapphire Corp)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless IndemniteeAgreement, or, in the case of (a) and (d)unless ordered by a court, to advance Expenses to Indemnitee:make any indemnity in connection with any Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for Indemnitee’s conduct which is (i) finally adjudged to have involved intentional misconduct, fraud or a knowing violation of the law and (ii) was material to the cause of action; (c) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (cd) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedinge) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(c) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (ef) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Pulse Biosciences, Inc.)

Exclusions. Notwithstanding any provision in this AgreementAgreement to the contrary, the Company and unless otherwise permitted by applicable law, Ensco Delaware shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), make any payment pursuant to advance Expenses to Indemniteethis Agreement: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (b) for (i) 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 U.S. Securities Exchange Act of 1934, as amended, or any successor provision or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement due to the material noncompliance of the Corporation Company, as a result of the misconduct of Indemnitee, with any financial reporting requirement under the securities laws pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee ; (c) for which payment is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;expressly prohibited by law; or (d) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against Ensco Delaware or the Company or its directors, officers, employees or other indemnitees, unless (i) the Board board of directors of Ensco Delaware authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) Ensco Delaware provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Ensco Delaware under applicable law law. These exclusions shall not limit the right to advancement of Expenses under Section 10 or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights otherwise under this Agreement (for pending the avoidance outcome of doubtany Proceeding unless such advancement of Expenses is expressly prohibited by law. Notwithstanding the foregoing, Indemnitee this provision shall not be deemed, for purposes of limit Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in this subsection, to have initiated Agreement or brought any claim as otherwise expressly required by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Ensco International Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act Act, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under pursuant to the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under pursuant to applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (API Technologies Corp.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained procured by the Company Company, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which the Indemnitee has consented); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx SOX Act”)) or Section 954 of the Xxxx—Xxxxx Xxxx Street Reform and Consumer Protection Act, or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under arrangements to which the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActIndemnitee has consented); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision by a court having of competent jurisdiction in the matter that is not subject to appeal shall determine determines that such indemnification is not lawfulprohibited by applicable law in a final judgment from which there is no further right of appeal.

Appears in 1 contract

Samples: Indemnification Agreement (GMS Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002 (the “txx "Xxxxxxxx-Xxxxx Xxley Act"), or the payment to the Corporation xxxxxxx xx xxx Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSarbanes-Xxxxx Act), if Oxley Act or (iii) axx xxxxxxxxxxxnt of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Ipg Photonics Corp)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemniteemake any indemnity payment: (a) in connection with any claim made against Indemnitee for which payment has actually been made to received by or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid actually received under such any insurance policy;, contract, agreement, other indemnity provision or otherwise; or (b) in connection with any claim made against Indemnitee for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based incentive−based or equity-based equity−based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Sarbanes−Oxley Act of 2002 (the “XxxxxxxxSarbanes−Oxley Act”) or Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act”), ; or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Sarbanes−Oxley Act), , (c) if Indemnitee a final decision by a court of competent jurisdiction determines that such indemnification is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;prohibited by applicable law; or (d) except as otherwise provided in Section 12(d) of this Agreement14(e), in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (United Insurance Holdings Corp.)

Exclusions. Notwithstanding any provision in this Agreement (including Section 6 of this Agreement), the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) [except as provided in Section 15 of this Agreement,] for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act Act, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSaxxxxxx-Xxxxx Act Xct of 2002 (the “XxxxxxxxSaxxxxxx-Xxxxx ActXct”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSaxxxxxx-Xxxxx ActXct), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation to the extent such reimbursement is required under Section 12(d) 954 of this Agreement, the Doxx-Xrxxx Xxxx Xtreet Reform and Consumer Protection Act or any rules adopted or promulgated thereunder or in connection with therewith, but in any Proceeding case only if Indemnitee is held liable therefor (or including pursuant to any part of any Proceedingsettlement arrangements); (e) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes otherwise authorized in Section 12(d) of this subsectionAgreement, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (ef) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Semler Scientific, Inc.)

Exclusions. (a) Notwithstanding the foregoing, UpREIT shall not have any provision liability for indemnification under this Agreement (other than for reasonable costs and expenses incurred by a Xxxxx Indemnitee in accordance with this Agreement) to the extent the amount otherwise indemnifiable is payable by such Xxxxx Indemnitee as a result of one or more of the following: (i) Any Xxxxx Indemnitee recognizing gain in respect of the Capital Contribution of Xxxxx Properties under Code section 707(a)(2), assuming that each Nonrecourse Liability described in Section 2(a) of this Agreement is a "qualified liability" within the meaning of Regulations Section 1.707-5(a)(6), except as a result of either a sale or disposition of such Xxxxx Property, an indemnity payment under this Agreement, or the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, general partner nature of the Xxxxx LLC's interest in the case Partnership and the put right described in the Put Agreement; (ii) Any payment of cash to a Contributor under Section 3.02(a)(i) of the Contribution Agreement; (iii) Any Xxxxx Indemnitee's Interest in the UpREIT not being respected as a partnership interest to the extent, and as provided in, the Partnership Agreement; (iv) The allocations of income, gain, loss, deduction and credit set forth in the Partnership Agreement not being respected under Sections 704(b) and 704(c) of the Code, except as a result of the exercise of discretion by the Managing General Partner of the UpREIT in respect of (aA) and an adjustment to the "Gross Asset Values" of UpREIT assets, as described in clause (db) of the definition thereof, or (B) the allocation of Nonrecourse Deductions under the proviso within Section 6.6.A. of the Partnership Agreement; (v) The UpREIT not being the owner of the Xxxxx Properties for federal income tax purposes as of the relevant Adjustment Date; (vi) Immediately after the relevant Adjustment Date, any Xxxxx Indemnitee's share of Partnership Minimum Gain under Regulations Section 1.704-2(g)(1) not being as shown on Exhibit B attached hereto; (1) any change in, or amendment to, the Code or any other federal tax statute, which is effective on or after the relevant Adjustment Date, (2) any final or temporary regulation, which is enacted or adopted after the relevant Adjustment Date, or (3) any court decision issued after the relevant Adjustment Date; (viii) No Xxxxx Indemnitee is or will be a tax-exempt entity or person; (ix) A determination that any Xxxxx Indemnitee did not enter the transactions contemplated by the Partnership Agreement for profit or with a sufficient business purpose; (x) A voluntary or involuntary sale, assignment, transfer or other disposition by any Xxxxx Indemnitee of any interest in the UpREIT or any part thereof, (xi) The failure of any Xxxxx Indemnitee to claim or to follow the proper procedure in claiming in a timely manner any UpREIT item allocated to such Xxxxx Indemnitee by the Partnership; (xii) The failure of any Xxxxx Indemnitee to take timely action or follow the proper procedures in reporting his distributive share from the UpREIT or contesting a claim made by the Internal Revenue Service in accordance with the Partnership Agreement; (xiii) The gross negligence or the willful misconduct of any Xxxxx Indemnitee or any affiliate thereof, (xiv) Any breach by any Xxxxx Indemnitee of any of its representations, warranties or covenants in Sections 7.1.A. or 8.2 of the Partnership Agreement (prior to the GP Termination Date), to advance Expenses to Indemnitee:Sections 10.5, 11.3.A., 11.6.A., D or E. of the Partnership Agreement, Sections 2 or 6 of this Agreement, or the Contribution Agreement; (axv) for which payment has actually been made Any guarantee by any Xxxxx Indemnitee or a person related to any Xxxxx Indemnitee of any Nonrecourse Liability encumbering a Xxxxx Property or on behalf Xxxxx Interest or any other debt of the UpREIT or its affiliates; (xvi) Any Xxxxx Indemnitee recognizing taxable income under Code Section 704(c), except to the extent such income results from either a sale or other disposition of a Xxxxx Property or income under Code Section 704(c) in excess of that allocable to such Xxxxx Indemnitee under the "traditional method" of Regulations Section 1.704-3(b); (xvii) Any recapture under Code Section 1245 or 1250 of depreciation attributable to Xxxxx Properties that was allocated to any insurance policy obtained by Xxxxx Indemnitee after the Company except relevant Adjustment Date.; (xviii) the sale, transfer or other disposition of any Xxxxx Property after the fifth anniversary of the GP Termination Date; provided, however, that the UpREIT uses its best efforts to cause such sale, transfer or other disposition to be on a tax-deferred or tax-exempt basis- or (xix) the sale, transfer or other disposition of all or any portion of the land described in Exhibit D hereto (the "Land"); provided, however, that the UpREIT uses its best efforts to cause such sale, transfer or other disposition of the Land that occurs within the period ending on or prior to the fifth anniversary of the GP Termination Date, to be on a tax-deferred or tax-exempt basis; (xx) The exercise of the lessee purchase option with respect to the property at 0000 X. Xxxxx Xxxx (but not including any excess beyond purchase pursuant to the amount paid under such insurance policy;right of first refusal thereto). (b) Further, notwithstanding anything to the contrary within this Agreement, after taking into account any amounts thereof excluded under Section 5(a), the cumulative Income Inclusions for an accounting all Xxxxx Indemnitees in respect of profits made from Section 3(a), 3(b) and 3(c) that will be indemnifiable by the purchase and sale UpREIT shall not exceed the following: (or sale and purchasei) by Indemnitee For any Income Inclusion under Section 3(b),the aggregate negative Capital Accounts of securities all Xxxxx Indemnitees as set forth on Exhibit B; (ii) For any Income Inclusion under Section 3(a), the aggregate Minimum Gain of all Xxxxx Indemnitees as set forth on Exhibit B; and (iii) For any Income Inclusion under Section 3(c), the excess of the Company within the meaning of Section 16(b) aggregate Gross Asset Value of the Exchange Act or similar provisions Xxxxx Properties contributed to the UpREIT on the relevant Adjustment Dates, over the aggregate initial adjusted tax bases of state statutory law or common law;such Xxxxx Properties on such relevant Adjustment Dates. (c) for Finally, notwithstanding anything to the contrary within this Agreement, after taking into account any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case amounts thereof excluded under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”Sections 5(a) and 5(b), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held UpREIT shall not be liable therefor (including pursuant to any settlement arrangements) or for indemnification under this Agreement in respect of claw-back provisions promulgated an Income Inclusion under the rules and regulations of the Securities and Exchange Commission pursuant Section 3(a) or (b), to the Xxxx-extent of that such Income Inclusion arises from a Final Determination that the amount of debt of UpREIT allocable to such Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsectionSection 752 of the Code and Regulations Section 1.752-3(a)(3) is less than the amount of debt such Xxxxx Indemnitee would be allocated if the UpREIT allocated the Xxxxx Indemnitees collectively an aggregate amount of debt, using the Indemnity Debt Allocation Method for purposes of Section 752 of the Code and Regulations Section 1.752-3(a)(3), of at least $25,000,000 (with such amount to have initiated be increased in respect of the contribution subsequent to the date hereof of the Xxxxx Road Property, the Xxxxx Place Property, the property located at 0000 Xxxxxxx Xxxxx, Schaumburg, Illinois or brought any claim the property located at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, by reason $600,000, $4,000,000, $500,000 and $2,000,000, respectively- provided, however, that UpREIT actually allocates to the Xxxxx Indemnitee, collectively, on the UpREIT's federal, applicable state and Xxxx Ridge income tax returns, at least such aggregate amount of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfuldebt.

Appears in 1 contract

Samples: Tax Indemnification Agreement (Prime Group Realty Trust)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision[, and except as provided in Section 15(e)]1; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Apellis Pharmaceuticals, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained procured by the Company Company, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid, subject to any subrogation rights set forth in Section 13 hereof; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which the Indemnitee has consented); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-SOX Act or Section 954 of the Xxxx–Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under arrangements to which the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActIndemnitee has consented); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation), (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision by a court having of competent jurisdiction in the matter that is not subject to appeal shall determine determines that such indemnification is not lawfulprohibited by applicable law in a final judgment from which there is no further right of appeal.

Appears in 1 contract

Samples: Indemnification Agreement (CCC Intelligent Solutions Holdings Inc.)

Exclusions. Notwithstanding any provision in of this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemniteemake any indemnity (and, orwith respect to clause (c) below, advancement of expenses) in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as hereinafter defined) or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;or (dc) except as provided in Section 12(d) 13 of this Agreement, in connection with any Proceeding action, suit or proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, including any Proceeding action, suit or proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors authorized the Proceeding action, suit or proceeding (or any part of any Proceedingthereof) prior to its initiation, initiation or (ii) the Company provides the indemnificationindemnification or advancement of expenses, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Exterran Holdings Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy; (b) 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 Exchange Act or similar provisions of state statutory law or common law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the XxxxxxxxSarbanes-Xxxxx Act of Xxx xx 2002 (the “XxxxxxxxSarbanes-Xxxxx ActXxx”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSarbanes-Xxxxx ActXxx), if xf Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the XxxxDodd-Xxxxx Xxxx Street Fraxx Xaxx Xxxxxx Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawful.

Appears in 1 contract

Samples: Indemnification Agreement (Brigham Minerals, Inc.)

Exclusions. Notwithstanding any provision in this AgreementAgreement to the contrary, neither the Company Partnership nor the General Partner shall not be obligated under this Agreement to indemnify make any indemnification or hold harmless Indemnitee, or, payment in connection with any of the case of (a) and (d), to advance Expenses to Indemniteefollowing: (a) a claim made against Indemnitee for which payment has actually been made to received by or on behalf of Indemnitee under any director or officer liability insurance policy obtained by or other indemnity provision between Indemnitee and the Company General Partner or the Partnership, as the case may be, any of their respective subsidiaries or any Enterprise, except with respect to any excess beyond the amount paid actually received under any such insurance policy;policy or other indemnity provision; or (b) a claim made against Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Partnership within the meaning of Section 16(b) of the Exchange Act Act, or similar provisions of state statutory law or common law;; or (c) a claim made against Indemnitee for any reimbursement of of, or payment to, the Company Partnership by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationPartnership, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation General Partner pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the Xxxxxxxx-Xxxxx ActSOX”), or the payment to the Corporation Partnership of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActSOX), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (d) except as otherwise provided in Section 12(d) of this Agreement14(e), in connection with any Proceeding (or any part of any Proceeding) initiated voluntarily by Indemnitee, and not by way of defense, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company General Partner or its directorsthe Partnership, officersany legal entity which it controls, employees any director or officer thereof or any other indemnitees, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company Partnership provides the indemnification, advancement or hold harmless payment in its the General Partner’s sole discretion, pursuant to the powers vested in the Company General Partner under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Partnership Agreement; or (e) if a final decision claim made against Indemnitee for which indemnification or advancement of expenses is prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (CrossAmerica Partners LP)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by or other indemnity provision, except to the Company except with respect extent such payment is insufficient to any excess beyond satisfy the amount paid under such insurance policy;Indemnitee’s right to indemnification hereunder; or (b) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by an Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the Compensation Committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Installed Building Products, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company Corporation shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; provided that the foregoing shall not affect any rights of Indemnitee, any Sponsor Group Member or the ABS Control Group set forth in Section 16(c); (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; , or (cii) for any reimbursement of the Company Corporation by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d15(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfullaw.

Appears in 1 contract

Samples: Indemnification Agreement (Albertsons Companies, Inc.)

Exclusions. Notwithstanding any provision in this AgreementAgreement to the contrary, the Company shall does not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to Indemniteerespect of: (a) any claim for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policypolicy or other indemnity provision; (bi) 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 U.S. Securities Exchange Act of 1934, as amended, or any successor provision or similar provisions of state statutory law or common law; ; or (cii) for any reimbursement of to the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement due to the material noncompliance of the Corporation Company, as a result of the misconduct of Indemnitee, with any financial reporting requirement under the securities laws pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor therefor; (including pursuant to c) any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actclaim for which payment is expressly prohibited by applicable law; (d) except as provided in Section 12(d13(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board board of directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company it under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; orand (e) if a final decision any claim brought about or contributed to by a court having jurisdiction the fraud or dishonesty of the Indemnitee. These exclusions shall not limit the right to advancement of Expenses under Section 9 or otherwise under this Agreement pending the outcome of any Proceeding unless such advancement of Expenses is expressly prohibited by applicable law. Notwithstanding the foregoing, this provision shall not limit Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in the matter that is not subject to appeal shall determine that such indemnification is not lawfulthis Agreement or as otherwise expressly required by applicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Rowan N-Class (Gibraltar) LTD)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) Except as provided for in Section 18 hereof, for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such paid; provided, however, that payment made to Indemnitee pursuant to an insurance policy;policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement. (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 12 (a) or 12(d) hereof or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsection, Section 7(d) to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision prohibited by applicable law as determined by a court having of competent jurisdiction in the matter that is a final adjudication not subject to appeal shall determine that such indemnification is not lawfulfurther appeal.

Appears in 1 contract

Samples: Indemnification Agreement (Asana, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act Act, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or any other Enterprise, or its or their directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought otherwise authorized in Section 10(d) or (iv) otherwise required by Indemnitee to assertapplicable law; provided, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, deemed for purposes of this subsectionparagraph, to have initiated any Proceeding (or brought any claim part of a Proceeding) by reason of (Ai) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Bii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)Xxxxxxxxxx; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulDGCL or other applicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Sprinklr, Inc.)

Exclusions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnification provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) 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 Exchange Act (as defined in Section 2(b) hereof), or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;; or (dc) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized authorizes the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law law, or (iiiiv) such Proceeding is being brought by Indemnitee to assert, interpret establish or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubtAgreement, Indemnitee shall not be deemedor any other statute or law, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulotherwise as required under applicable law.

Appears in 1 contract

Samples: Indemnification Agreement (SoulCycle Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by the Company policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under (and excluding any Secondary Indemnitor); provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense, or by any Affiliate of Indemnitee, of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement to the extent that the person who made such insurance policypayment holds valid subrogation rights with respect to such amount; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b17(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by applicable law as determined by a court having of competent jurisdiction in the matter that is a final adjudication not subject to appeal shall determine that such indemnification is not lawfulfurther appeal.

Appears in 1 contract

Samples: Indemnification Agreement (Advance Holdings, LLC)

Exclusions. (a) Notwithstanding the foregoing, UpREIT shall not have any provision liability for indemnification under this Agreement (other than for reasonable costs and expenses incurred by a Xxxxx Indemnitee in accordance with this Agreement) to the extent the amount otherwise indemnifiable is payable by such Xxxxx Indemnitee as a result of one or more of the following: (i) Any Xxxxx Indemnitee recognizing gain in respect of the Capital Contribution of Xxxxx Properties under Code section 707(a)(2), assuming that each Nonrecourse Liability described in Section 2(a) of this Agreement is a "qualified liability" within the meaning of Regulations Section 1.707-5(a)(6), except as a result of either a sale or disposition of such Xxxxx Property, an indemnity payment under this Agreement, or the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, general partner nature of the Xxxxx LLC's interest in the case Partnership and the put right described in that certain [Put Agreement], dated the date hereof, between _____ ; (ii) Any payment of cash to a Contributor under Section 3.02(a)(i) of the Contribution Agreement; (iii) Any Xxxxx Indemnitee's Interest in the UpREIT not being respected as a partnership interest to the extent, and as provided in, the Partnership Agreement; (iv) The allocations of income, gain, loss, deduction and credit set forth in the Partnership Agreement not being respected under Sections 704(b) and 704(c) of the Code, except as a result of the exercise of discretion by the Managing General Partner of the UpREIT in respect of (aA) and an adjustment to the "Gross Asset Values" of UpREIT assets, as described in clause (db) of the definition thereof, or (B) the allocation of Nonrecourse Deductions under the proviso within [Section 6.3.A.(3)] of the Partnership Agreement; (v) The UpREIT not being the owner of the Xxxxx Properties for federal income tax purposes as of the relevant Adjustment Date; (vi) Immediately after the relevant Adjustment Date, any Xxxxx Indemnitee's share of Partnership Minimum Gain under Regulations Section 1.704- 2(g)(1) not being as shown on Exhibit B attached hereto; (1) any change in, or amendment to, the Code or any other federal tax statute, which is effective on or after the relevant Adjustment Date, (2) any final or temporary regulation, which is enacted or adopted after the relevant Adjustment Date, or (3) any court decision issued after the relevant Adjustment Date; (viii) No Xxxxx Indemnitee is or will be a tax-exempt entity or person; (ix) A determination that any Xxxxx Indemnitee did not enter the transactions contemplated by the Partnership Agreement for profit or with a sufficient business purpose; (x) A voluntary or involuntary sale, assignment, transfer or other disposition by any Xxxxx Indemnitee of any interest in the UpREIT or any part thereof; (xi) The failure of any Xxxxx Indemnitee to claim or to follow the proper procedure in claiming in a timely manner any UpREIT item allocated to such Xxxxx Indemnitee by the Partnership; (xii) The failure of any Xxxxx Indemnitee to take timely action or follow the proper procedures in reporting his distributive share from the UpREIT or contesting a claim made by the Internal Revenue Service in accordance with the Partnership Agreement; (xiii) The gross negligence or the willful misconduct of any Xxxxx Indemnitee or any affiliate thereof; (xiv) Any breach by any Xxxxx Indemnitee of any of its representations, warranties or covenants in Sections [7.1.A. or 8.2 of the Partnership Agreement (prior to the GP Termination Date), to advance Expenses to Indemnitee:Sections 10.5, 11.3.A., 11.6.A., D or E.,] of the Partnership Agreement, Sections 2 or 6 of this Agreement, or the Contribution Agreement; (axv) for which payment has actually been made Any guarantee by any Xxxxx Indemnitee or a person related to any Xxxxx Indemnitee of any Nonrecourse Liability encumbering a Xxxxx Property or on behalf Xxxxx Interest or any other debt of the UpREIT or its affiliates; (xvi) Any Xxxxx Indemnitee recognizing taxable income under Code Section 704(c), except to the extent such income results from either a sale or other disposition of a Xxxxx Property or income under Code Section 704(c) in excess of that allocable to such Xxxxx Indemnitee under any insurance policy obtained by the Company except with respect "traditional method" of Regulations Section 1.704-3(b); (xvii) Any recapture under Code Section 1245 or 1250 of depreciation attributable to Xxxxx Properties that was allocated to any excess beyond Xxxxx Indemnitee after the amount paid under relevant Adjustment Date.; (xviii) the sale, transfer or other disposition of any Xxxxx Property after the fifth anniversary of the GP Termination Date; provided, however, that the UpREIT uses its best efforts to cause such insurance policy;sale, transfer or other disposition to be on a tax-deferred or tax-exempt basis; or (xix) the sale, transfer or other disposition of all or any portion of the land described in Exhibit D hereto (the "Land"); provided, however, that the UpREIT uses its best efforts to cause such sale, transfer or other disposition of the Land that occurs within the period ending on or prior to the fifth anniversary of the GP Termination Date, to be on a tax-deferred or tax- exempt basis. (b) Further, notwithstanding anything to the contrary within this Agreement, after taking into account any amounts thereof excluded under Section 5(a), the cumulative Income Inclusions for an accounting all Xxxxx Indemnitees in respect of profits made from Section 3(a), 3(b) and 3(c) that will be indemnifiable by the purchase and sale UpREIT shall not exceed the following: (or sale and purchasei) by Indemnitee For any Income Inclusion under Section 3(b),the aggregate negative Capital Accounts of securities all Xxxxx Indemnitees as set forth on Exhibit B; (ii) For any Income Inclusion under Section 3(a), the aggregate Minimum Gain of all Xxxxx Indemnitees as set forth on Exhibit B; and (iii) For any Income Inclusion under Section 3(c), the excess of the Company within the meaning of Section 16(b) aggregate Gross Asset Value of the Exchange Act or similar provisions Xxxxx Properties contributed to the UpREIT on the relevant Adjustment Dates, over the aggregate initial adjusted tax bases of state statutory law or common law;such Xxxxx Properties on such relevant Adjustment Dates. (c) for Finally, notwithstanding anything to the contrary within this Agreement, after taking into account any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case amounts thereof excluded under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”Sections 5(a) and 5(b), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held UpREIT shall not be liable therefor (including pursuant to any settlement arrangements) or for indemnification under this Agreement in respect of claw-back provisions promulgated an Income Inclusion under the rules and regulations of the Securities and Exchange Commission pursuant Section 3(a) or (b), to the Xxxx-extent of that such Income Inclusion arises from a Final Determination that the amount of debt of UpREIT allocable to such Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsectionSection 752 of the Code and Regulations Section 1.752-3(a)(3) is less than the amount of debt such Xxxxx Indemnitee would be allocated if the UpREIT allocated the Xxxxx Indemnitees collectively an aggregate amount of debt, using the Indemnity Debt Allocation Method for purposes of Section 752 of the Code and Regulations Section 1.752-3(a)(3), of at least $43 million; provided, however, that UpREIT actually allocates to have initiated or brought any claim by reason the Xxxxx Indemnitee, collectively, on the UpREIT's federal, applicable state and Xxxx Ridge income tax returns, at least such aggregate amount of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfuldebt.

Appears in 1 contract

Samples: Contribution Agreement (Prime Group Realty Trust)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained procured by the Company Company, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which the Indemnitee has consented); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx SOX Act”)) or Section 954 of the Xxxx–Xxxxx Xxxx Street Reform and Consumer Protection Act, or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under arrangements to which the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActIndemnitee has consented); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 12(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision by a court having of competent jurisdiction in the matter that is not subject to appeal shall determine determines that such indemnification is not lawfulprohibited by applicable law in a final judgment from which there is no further right of appeal.

Appears in 1 contract

Samples: Indemnification Agreement (GoDaddy Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnity in the case of (a) and (d), to advance Expenses to connection with any claim made against Indemnitee: (a) for which payment has actually been made to received by or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid actually received under such any insurance policy, contract, agreement, other indemnity provision or otherwise; (b) for an accounting or disgorgement 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 Exchange Act or similar provisions of federal, state or local statutory law or common law if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) Except as otherwise provided in Sections 10(a) and 14(e)-(f), in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or relevant part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) otherwise required by applicable law; (cd) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (Cohu Inc)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnification or hold harmless Indemnitee, or, payment in the case of (a) and (d), to advance Expenses to Indemniteeconnection with any Proceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for any payment which is prohibited by any applicable federal or state banking law or regulation, as confirmed in writing by the federal or state banking regulator charged with enforcement of such law or regulation; or (c) for (i) 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 Exchange Act or similar provisions of state statutory law or common law; , (cii) for the recovery of any profit realized in violation of Section 306 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any regulations promulgated thereunder or (iii) any reimbursement of or recoupment by the Company by from the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale acquisition or disposition of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements or recoupments that arise from an accounting any restatement of the Corporation pursuant to Company’s financial statements as contemplated by (x) Section 954 of the Xxxx-Xxxxx Xxxx Street Reform Act of 2010 and any regulations promulgated thereunder, (y) Section 304 of the Xxxxxxxx-Xxxxx Act and any regulations promulgated thereunder or (z) any formal policy of 2002 the Company adopted by the Board (the “Xxxxxxxx-Xxxxx Act”or a duly authorized committee thereof)), or the payment any other remuneration paid to the Corporation of profits arising from the purchase and sale Indemnitee if it shall be determined by Indemnitee of securities a final judgment or other final adjudication that such remuneration was in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act;law; or (d) except as provided in Section 12(d13(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated voluntarily by IndemniteeIndemnitee and not by way of defense, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company Company, any legal entity which it controls or any of its or their directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, advancement or hold harmless payment in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (e) if To indemnify Indemnitee on account of conduct by Indemnitee where such conduct has been determined by a final decision by a judgment or other adjudication of the Delaware Court, or other court having jurisdiction in the matter that of competent jurisdiction, as to which there is not subject no further right or option of appeal to appeal shall determine that such indemnification is not lawfulhave been knowingly fraudulent or to constitute willful misconduct.

Appears in 1 contract

Samples: Indemnification Agreement (Texas Capital Bancshares Inc/Tx)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify make any indemnity in connection with any Proceeding (or hold harmless Indemnitee, or, in the case any part of (a) and (d), to advance Expenses to Indemnitee:any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy obtained by policy, indemnity provision, vote or otherwise (other than pursuant to Section 13(b) below, to the Company extent applicable), except with respect to any excess beyond the amount paid under such insurance policypaid; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act); (d) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or law, (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (Aotherwise authorized in Section 11(d) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (Biv) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated otherwise required by Indemnitee)applicable law; or (e) if a final decision prohibited by a court having jurisdiction in the matter that is not subject to appeal shall determine that such indemnification is not lawfulapplicable law.

Appears in 1 contract

Samples: Indemnification Agreement (NetApp, Inc.)

Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, make any indemnification payment in the case of (a) and (d), to advance Expenses to connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy obtained by the Company or other indemnity provision, except with respect to any excess beyond the amount paid under such any insurance policy;policy or other indemnity provision; or (b) for (i) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), (ii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act (or any similar rule) or (iii) 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 Exchange Act (as defined in Section 2(b) hereof) (to the extent such provision applies to the Company) or similar provisions of state statutory law or common applicable law; (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (d) except as provided in Section 12(d14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee)law; or (ed) if a final decision by a court having jurisdiction which extends to any matter in respect of any fraud or dishonesty in relation to the matter that is not subject Company which attaches to appeal shall determine that such indemnification is not lawfulthe Indemnitee.

Appears in 1 contract

Samples: Indemnification Agreement (International General Insurance Holdings Ltd.)

Exclusions. Notwithstanding any provision in this AgreementAgreement to the contrary, the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee, or, in the case of (a) and (d), to advance Expenses to IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which payment advancement is provided hereunder) if and to the extent that Indemnitee has actually otherwise been made to or on behalf of Indemnitee paid such amounts under any insurance policy obtained by the Company except with respect to any excess beyond the amount paid under such insurance policy, contract, agreement or otherwise; (b) to indemnify for (i) 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 Exchange Act (as defined in Section 2(a)), or similar provisions of state statutory law or common law; , (cii) for any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the CorporationCompany, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Corporation Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if ) or (iii) any reimbursement of the Company by Indemnitee is held liable therefor (including of any compensation pursuant to any settlement arrangements) compensation recoupment or in respect of claw-back provisions promulgated under clawback policy adopted by the rules and regulations Board or the compensation committee of the Securities and Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; or; (dc) except as provided in Section 12(d) of this Agreementto indemnify with respect to any Proceeding, in connection with or part thereof, brought by Indemnitee against the Company, any Proceeding (legal entity which it controls, any director or officer thereof or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee, against the Company or its directors, officers, employees or other indemniteesthird party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation, thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (iiilaw; provided, however, that this Section 7(c) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, apply to have initiated or brought any claim by reason of (A) having asserted any counterclaims or affirmative defenses asserted by Indemnitee in connection with a claim not initiated by an action brought against Indemnitee or (B) having made any counterclaim (whether permissive action brought by Indemnitee for indemnification or mandatory) advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in connection with the suit for which indemnification or advancement is being sought as described in Section 12. Indemnitee shall seek payments or advances from the Company only to the extent that such payments or advances are unavailable from any claim not initiated by insurance policy of the Company covering Indemnitee); or (ed) if a final decision by a court having jurisdiction in the matter to provide any indemnification or advancement of expenses that is not subject prohibited by applicable law (as such law exists at the time payment would otherwise be required pursuant to appeal shall determine that such indemnification is not lawfulthis Agreement).

Appears in 1 contract

Samples: Indemnification Agreement (Fifth Wall Acquisition Corp. I)

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