Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 7 contracts
Samples: Business Combination Agreement (ArcLight Clean Transition Corp. II), Limited Liability Company Agreement (Highland Transcend Partners I Corp.), Operating Agreement (Wm Technology, Inc.)
Exculpation and Indemnification. Notwithstanding In the event that the Member or any other provision of this Agreementits direct or indirect directors, whether express officers, stockholders, employees, agents, affiliates or impliedcontrolling persons (collectively, the “Indemnified Persons”; each, including the Member, an “Indemnified Person”), becomes involved, in any capacity, in any threatened, pending or completed, action, proceeding or investigation, in connection with any matter arising out of or relating to the fullest extent permitted by lawCompany’s business or affairs, no Indemnitee the Company will periodically reimburse such Indemnified Person for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall be liable promptly repay to the Company or the amount of any Member for any act or omission in relation such reimbursed expenses paid to it if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconductinvestigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (collectively, “Costs”), to which such amendmentan Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company’s business or affairs, only except to the extent that any such amendment permits Costs result solely from the Company to provide broader willful misfeasance, gross negligence or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance, gross negligence, or bad faith of such Indemnified Person) the foregoing indemnification rights than such law permitted the Company to provide prior is unavailable to such amendment)Indemnified Person, or insufficient to hold it harmless, then the Company shall indemnify any Indemnitee who was contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is made or is threatened appropriate to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in reflect not only the right relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company or otherwise)and such Indemnified Person, whether civilas well as any relevant equitable considerations. The reimbursement, criminal, administrative, arbitrative or investigative, indemnity and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right contribution obligations of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee under this Section 12 shall be secondary in addition to any liability which the Company may otherwise have to any Indemnified Person and all indemnification shall be binding upon and inure to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”)any successors, assigns, heirs and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit personal representatives of the Company or and any IndemniteeIndemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section 12 shall be limited to the Company’s assets, and the Member shall not have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Aleris International, Inc.), Limited Liability Company Agreement (Aleris International, Inc.), Limited Liability Company Agreement (Aleris International, Inc.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)informal, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, Member and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (ed) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from (x) the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee), and (y) the relevant Fund (if applicable) (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Fund or the Indemnitee) (clauses (x) and (y) together, the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person or Fund shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. “Fund” means any fund, investment vehicle or account whose investments are managed or advised by the Managing Member (if any) or its affiliates.
Appears in 3 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Medley Management Inc.), Limited Liability Company Agreement (Medley Management Inc.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company Partnership or any Member Partner for any act or omission in relation to the Company Partnership or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company Partnership to provide broader indemnification rights than such law permitted the Company Partnership to provide prior to such amendment), the Company Partnership shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company Partnership or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)informal, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company Partnership shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, General Partner and (ii) by or in the right of the Company Partnership only if the Managing Member General Partner has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company Partnership or any Indemnitee.
Appears in 3 contracts
Samples: Limited Partnership Agreement (PJT Partners Inc.), Limited Partnership Agreement (PJT Partners Inc.), Limited Partnership Agreement (PJT Partners Inc.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company Partnership or any Member Partner for any act or omission in relation to the Company Partnership or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company Partnership to provide broader indemnification rights than such law permitted the Company Partnership to provide prior to such amendment), the Company Partnership shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company Partnership or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)informal, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c)) hereof, the Company Partnership shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, General Partner and (ii) by or in the right of the Company Partnership only if the Managing Member General Partner has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (ed) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the CompanyPartnership. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company Partnership or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement rights provided pursuant to the Original Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Summit Materials, Inc.), Limited Partnership Agreement (Summit Materials, Inc.), Limited Partnership Agreement (Summit Materials, Inc.)
Exculpation and Indemnification. (a) Except as otherwise provided in this Agreement, the Investment Manager shall not be liable to the Company, any Included Entities or their shareholders for any action or inaction in connection with the business of the Company or the Included Entities unless such action or inaction is adjudged to constitute gross negligence, willful malfeasance, willful misconduct or otherwise in violation of the covenants and agreements of the Investment Manager and its Affiliates contained herein. It shall be conclusively presumed and established that the Investment Manager acted in good faith and in accordance with this Agreement if any action is taken, or not taken, by it on the advice of legal counsel or other independent outside consultants or agents. Notwithstanding any other provision of this Agreement, whether express or implied, Agreement to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)contrary, the Company will indemnify and hold harmless the Investment Manager and its stockholders, officers, directors, employees, agents and their respective affiliates (collectively, “Indemnified Persons”) from and against any loss or expense suffered or sustained by an Indemnified Person resulting from the performance or non-performance of the Investment Manager’s duties under this Agreement, including without limitation any judgment, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action or proceeding, provided that such indemnity will not extend to conduct by an Indemnified Person that is adjudged to constitute gross negligence, willful malfeasance, willful misconduct, or otherwise violate the covenants and agreements of the Investment Manager and its Affiliates contained herein.
(b) The Investment Manager shall indemnify be entitled to receive, upon application therefor, advances from the Included Entities to cover the costs of defending any Indemnitee who was or is made or is pending, threatened to be made a party to or is otherwise involved in any threatened, pending or completed claim, action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, against it for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee Claims in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not which it would be entitled to indemnification hereunder ifunder this Section 14, but only provided, that such advances shall be repaid to the extent thatIncluded Entities (with interest thereon at an annual rate equal to the Money Market Rate (as defined below)) if the Investment Manager is found to be guilty of gross negligence willful malfeasance, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct, or otherwise in violation of the covenants and agreements of the Investment Manager and its Affiliates contained herein, which precludes indemnification hereunder. Notwithstanding For the preceding sentencepurposes of this Section 14, except “Money Market Rate” shall mean a money market rate of interest as otherwise provided determined in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized good faith by the Managing Member, and (ii) Investment Manager from time to time by referencing recognized financial publications like the Wall Street Journal or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to financial service providers like Bloomberg or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.Reuters
Appears in 2 contracts
Samples: Investment Management Agreement (Gerova Financial Group LTD), Investment Management Agreement (Asia Special Situation Acquisition Corp)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)informal, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, Manager and (ii) by or in the right of the Company only if the Managing Member Manager has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (ed) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from (x) the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee), and (y) the relevant Fund (if applicable) (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Fund or the Indemnitee) (clauses (x) and (y) together, the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person or Fund shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. “Fund” means any fund, investment vehicle or account whose investments are managed or advised by the Manager (if any) or its affiliates.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Medley Management Inc.), Limited Liability Company Agreement (Medley LLC)
Exculpation and Indemnification. Notwithstanding 5.1 The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control the obligations and duties of the Escrow Agent in all respects. The Escrow Agent shall not be subject to, nor be under any obligation to ascertain or construe the terms and conditions of any other instrument, whether express or implied, not now or hereafter deposited with or delivered to the fullest extent permitted Escrow Agent or referred to in this Agreement, nor shall the Escrow Agent be obligated to inquire as to the form, execution, sufficiency, or validity of any such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same; provided that in the event that New Skies and BSSI settle any dispute arising out of or in connection with the NSS-8 Contract as provided in that contract, the Escrow Agent shall comply with any decision rendered by the arbitrators or by a court of law in accordance therewith. The Escrow Agent is hereby expressly authorized to comply with and obey awards of any such arbitrators and orders, judgments or decrees of any such court of law, no Indemnitee notwithstanding any notices, warnings or other communications from any party or any other person to the contrary. In case the Escrow Agent obeys or complies with any such award, order, judgment or decree, the Escrow Agent shall not be liable to any of the Company parties hereto or to any Member other person by reason of such compliance, notwithstanding any such award, order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
5.2 The Escrow Agent shall not be personally liable for any act that it may do or omission omit to do hereunder in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad good faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but and in the case exercise of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken own best judgment. Any act done or omitted to be taken done by Indemnitee the Escrow Agent pursuant to the advice of its attorneys shall be deemed conclusively to have been performed or omitted in good faith by the Escrow Agent.
5.3 In the event the Escrow Agent is notified of any dispute, disagreement or legal action between New Skies and BSSI and any third party relating to or arising in connection with the escrow, the Escrow Fund, or the performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such capacitycontroversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In such event, the Escrow Agent will not be liable for interest (other than interest and any other investment earnings earned by the Escrow Amount during such period) or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves, provided that such action must be brought in accordance with Article XV hereof if the dispute involves solely New Skies and BSSI. The Escrow Agent is authorized, at its option, to deposit with the Clerk of the Court or the Arbitrator(s), as applicable, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which New Skies and BSSI jointly agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
5.4 New Skies and BSSI hereby agree, jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all loss costs, damages, judgments, reasonable attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liability suffered liabilities of every kind and expenses (including nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from the Escrow Agent’s gross negligence or willful misconduct, and to pay the Escrow Agent on demand the amount of all such costs, damages, judgments, attorneys’ fees), judgmentsexpenses, fines obligations, and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to liabilities. The costs and expenses of enforcing this right of indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company also shall be required to indemnify an Indemnitee paid jointly by New Skies and BSSI. The foregoing indemnities in connection with any action, suit this paragraph shall survive the resignation or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right substitution of the Company only if Escrow Agent or the Managing Member has provided its prior written consent. The indemnification termination of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 2 contracts
Samples: NSS 8 Spacecraft and Associated Equipment and Services Contract (New Skies Satellites Holdings Ltd.), NSS 8 Spacecraft and Associated Equipment and Services Contract (New Skies Satellites Holdings Ltd.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted will indemnify and hold harmless each of the Company to provide prior to such amendment)Members, the Company shall indemnify any Indemnitee Officers, employees or other agents who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending pending, or completed action, suit or proceeding (brought in the right of the Company or otherwise)proceeding, whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his any act or her omission or its status alleged act or omission arising out of such Person’s activities as an Indemnitee a Member, Officer, employee or other agent or otherwise on behalf of the Company if such activities were performed or omitted in good faith either on behalf of the Company or in furtherance of the interests of the Company, and were performed or omitted in a manner reasonably believed by such Person to be within the scope of the authority conferred by this Agreement, by law or by reason of any action alleged to have the Managing Member, against losses, damages, or expenses for which such Person has not otherwise been taken or omitted to be taken by Indemnitee in such capacityreimbursed (including, for without limitation, attorneys and against all loss accountant fees and liability suffered and expenses (including attorneys’ fees)expenses, judgments, judgment fines and amounts paid in settlement settlement), actually and reasonably incurred by such Indemnitee Person in connection with such action, suit or proceeding, so long as such Person was not guilty of gross negligence or willful misconduct with respect to such act or omission. Expenses, including appeals; provided that attorneys’ fees and expenses, incurred by any such Indemnitee shall not be indemnified Person in defending a proceeding as to which it is entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except (as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized reasonably determined by the Managing Member) shall be paid by the Company periodically in advance of the final disposition of such proceeding, and (ii) including any appeal therefrom, upon receipt of an undertaking by or in on behalf of such indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the right of Company. Notwithstanding anything contained herein to the contrary, any indemnity by the Company only if relating to the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified matters covered in clause (e) of the definition of Indemnitee this Section 5.5 shall be secondary to any provided and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit satisfied out of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Companyof Company assets only. The right to indemnification and the advancement of expenses conferred in this Section 5.5 shall not be exclusive of any other Indemnitee shallright which any such Person may have or hereafter acquire under any agreement, law or otherwise. If this Section 5.5 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each such indemnified Person pursuant to this Section 5.5 to the fullest extent permitted by any applicable portion of this Section 5.5 that shall not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteehave been invalidated.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Malibu Boats, Inc.), Limited Liability Company Agreement (Malibu Boats, Inc.)
Exculpation and Indemnification. Notwithstanding (a) The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. The Escrow Agent shall not be subject to, nor be under any obligation to ascertain or construe the terms and conditions of any other instrument, whether express or implied, not now or hereafter deposited with or delivered to the fullest extent permitted by lawEscrow Agent or referred to in this Agreement, no Indemnitee nor shall the Escrow Agent be liable obligated to inquire as to the Company form, execution, sufficiency, or validity of any Member such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same.
(b) The Escrow Agent shall not be personally liable for any act which it may do or omission omit to do hereunder in relation to good faith and in the Company or this Agreement or any transaction contemplated hereby exercise of its own best judgment. Any action taken or omitted by an Indemnitee the Escrow Agent pursuant to the advice of its attorneys shall be deemed conclusively to have been performed or omitted in good faith by the Escrow Agent.
(c) In the event the Escrow Agent is notified of any dispute, disagreement or legal action between the Fund and any third party relating to or arising in connection with the escrow, the Escrow Fund, or the performance of the Escrow Agent's duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and any funds specifically involved in or which are the subject of any dispute, disagreement or legal action, and may wait for settlement of any such controversy by final appropriate legal proceedings. In such event, the Escrow Agent will not be liable for interest or damage.
(d) The Fund hereby agrees to indemnify and hold the Escrow Agent harmless from and against all costs, damages, judgments, attorney's fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liabilities of every kind and nature which the Escrow Agent may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless such Indemnitee’s conduct constituted fraud, bad faith the aforementioned results from the Escrow Agent's gross negligence or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)to pay the Escrow Agent on demand the amount of all such costs, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees)damages, judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such actionattorney's fees, suit or proceedingexpenses, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Memberobligations, and (ii) by liabilities. The foregoing indemnities in this paragraph shall survive the resignation or in the right substitution of the Company only if Escrow Agent or the Managing Member has provided its prior written consent. The indemnification termination of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 2 contracts
Samples: Escrow Agreement (Price Fund I Lp), Escrow Agreement (Price Fund I Lp)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or his, her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-self- insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 2 contracts
Samples: Business Combination Agreement (Spree Acquisition Corp. 1 LTD), Limited Liability Company Agreement (OPAL Fuels Inc.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless in good faith and in the reasonable belief that such Indemnitee’s conduct constituted fraud, bad faith act or willful misconductomission was in the best interests of the Company. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by an Indemnitee in such capacity, for from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement of rights provided pursuant to the Existing Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Blackstone Holdings III L.P.), Limited Liability Company Agreement (Alight Group, Inc.)
Exculpation and Indemnification. Notwithstanding any other provision Each of this Agreementthe Covered Persons (each, whether express or impliedan “Indemnitee”) shall, to the fullest extent permitted by the Act or other applicable Law, be exculpated from, and indemnified by, the Company against any liability, loss, damage, penalty, action, claim, judgment, settlement, cost or expense of any kind or nature whatsoever (including, without limitation, all reasonable attorneys’ fees, costs and expenses of defense, appeal and settlement of any proceedings instituted against such Indemnitee or the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable) and all costs of investigation in connection therewith) that relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable) or such Indemnitee acting on behalf of the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable) (collectively, “Indemnifiable Losses”), other than acts or omissions involving fraud, willful misconduct, gross negligence or knowing violations of criminal law, no . The Company shall advance expenses incurred by such Indemnitee upon the receipt by the Company of the signed statement of such Indemnitee agreeing to reimburse the Company for such advance in the event it is ultimately determined that such Indemnitee is not entitled to be indemnified by the Company for such expenses. No Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person acts, receipts, neglects, defaults or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification omissions of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit agent of the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable), (ii) for any Indemniteeloss on account of defect of title to any property of the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable), (iii) on account of the insufficiency of any security in or upon which any money of the Company (or prior to the Effective Date, Xxxxx Group Holdings, LLC, as applicable) shall be invested or (iv) for any loss incurred through any bank, broker or other similar person. An Indemnitee that is a Manager shall not be denied exculpation and indemnification, or the advancement of expenses, in whole or in part, under this Section 11.1 solely because such Indemnitee had an interest in the transaction with respect to which the exculpation, indemnification or advancement of expenses is related if the transaction was otherwise permitted by the terms of this Agreement. Notwithstanding the foregoing, (A) the Xxxxx Parties shall remain liable for breaches of their representations, warranties and covenants contained in the Initial Purchase Agreement, and nothing herein (including the execution of this Agreement) shall expand or reduce the Xxxxx Parties’ indemnification obligations under the Initial Purchase Agreement, (B) Trican shall remain liable for breaches of its representations, warranties and covenants contained in the Trican Purchase Agreement, and nothing herein shall affect Trican’s indemnification obligations under the Trican Purchase Agreement and (C) Xxxxx Group Holdings, LLC shall remain liable for breaches of its representations, warranties and covenants contained in the Trican Purchase Agreement, and nothing herein shall affect the Xxxxx Group Holdings, LLC’s indemnification obligations under the Trican Purchase Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Keane Group, Inc.), Limited Liability Company Agreement (Keane Group, Inc.)
Exculpation and Indemnification. Notwithstanding No Member, officer or other authorized agent of the Company shall be liable to the Company, or any other provision person or entity who has an interest in the Company, for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such person by this Agreement, whether express except that such person shall be liable for any such loss, damage or impliedclaim incurred by reason of such person’s willful misfeasance or bad faith. In the event that the Member, or any of its direct or indirect members, partners, managers, directors, officers, stockholders, employees, agents, affiliates or controlling persons, or any officer of the Company (collectively, the “Indemnified Persons”; and each an “Indemnified Person”), becomes involved, in any capacity, in any threatened, pending or completed, action, suit proceeding or investigation, in connection with any matter arising out of or relating to the Company’s business or affairs, to the fullest extent permitted by applicable law, no Indemnitee shall any legal and other expenses (including the cost of any investigation and preparation) incurred by such Indemnified Person in connection therewith shall, from time to time, be liable advanced by the Company prior to the Company final disposition of such action, suit, proceeding or any Member for any act or omission in relation to investigation upon receipt by the Company of an undertaking by or this Agreement on behalf of the Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, suit proceeding or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconductinvestigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (collectively, “Costs”), to which such amendmentan Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company’s business or affairs, only except to the extent that any such amendment permits Costs result solely from the Company to provide broader willful misfeasance or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance or bad faith of such Indemnified Person) the foregoing indemnification rights than such law permitted the Company to provide prior is unavailable to such amendment)Indemnified Person, or insufficient to hold it harmless, then the Company shall indemnify any Indemnitee who was contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is made or is threatened appropriate to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in reflect not only the right relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company or otherwise)and such Indemnified Person, whether civilas well as any relevant equitable considerations. The reimbursement, criminal, administrative, arbitrative or investigative, indemnity and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right contribution obligations of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee under this Section shall be secondary in addition to any liability which the Company may otherwise have to any Indemnified Person and all indemnification shall be binding upon and inure to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”)any successors, assigns, heirs and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit personal representatives of the Company or and any IndemniteeIndemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section shall be limited to the Company’s assets, and no Member shall have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Wci Towers Northeast Usa, Inc.), Limited Liability Company Agreement (Wci Towers Northeast Usa, Inc.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by lawapplicable Law, as the same exists or may hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)amended, the Company shall indemnify and hold harmless any Indemnitee who is or was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise)proceeding, whether civil, criminal, administrative, arbitrative administrative or investigative, and whether formal or informal investigative (hereinafter a “Proceeding”), including appeals, ) by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all liability and loss and liability suffered and expenses (including including, without limitation, attorneys’ fees), judgments, fines and amounts paid in settlement settlement) reasonably incurred by such Indemnitee in connection with such action, suit or proceedingProceeding. The Company shall to the fullest extent not prohibited by applicable Law, pay the expenses (including appealsattorneys’ fees) incurred by an Indemnitee in defending or otherwise participating in any Proceeding in advance of its final disposition; provided that such Indemnitee shall not be entitled to indemnification hereunder ifprovided, but only however, that, to the extent thatrequired by applicable Law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking, by or on behalf of the Indemnitee’s conduct constituted fraud, bad faith to repay all amounts so advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Section 11.2(a) or willful misconductotherwise. Notwithstanding the preceding sentenceforegoing provisions of this Section 11.2(a), except as otherwise provided in Section 10.02(c)for Proceedings to enforce rights to indemnification and advancement of expenses, the Company shall be required indemnify and advance expenses to indemnify an Indemnitee in connection with any action, suit or proceeding a Proceeding (or part thereof) (i) commenced initiated by such Indemnitee only if the commencement of such action, suit or proceeding Proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Bakkt Holdings, Inc.), Merger Agreement (VPC Impact Acquisition Holdings)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless in good faith and in the reasonable belief that such Indemnitee’s conduct constituted fraud, bad faith act or willful misconductomission was in the best interests of the Company. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by an Indemnitee in such capacity, for from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith faith, gross negligence or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement of rights provided pursuant to the Existing Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Altimar Acquisition Corp. II)
Exculpation and Indemnification. (a) To the fullest extent permitted by the Delaware Act, no Covered Person, shall be liable to the Company, any Shareholder or any other Person (including any Person who holds any Derivative Securities) for monetary damages for breach of duties (including fiduciary duties, which, for the avoidance of doubt, shall not apply, as provided in Section 5.15), except if and to the extent that there has been a final, non-appealable determination, in a proceeding brought in accordance with Section 12.10, that, in connection with the matter in question, such Covered Person engaged in Fraud.
(b) To the fullest extent permitted by the Delaware Act, each Indemnified Person shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts incurred in connection with, or arising out of, any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative (including, without limitation, an action by or in the right of the Company), and whether formal or informal and including appeals, in which such Indemnified Person is, was or may be involved, or is threatened to be involved, as a party, a witness or otherwise, by reason of such Person’s status as an Indemnified Person, whether arising from any act or omission, any consent or approval given or withheld, or otherwise relating to the Company or its business and affairs; provided, however, that no Indemnified Person shall be indemnified or held harmless if and to the extent that there has been a final, non-appealable determination, in a proceeding brought in accordance with Section 12.10, that, in respect of the matter for which the Indemnified Person is seeking indemnification pursuant to this Section 5.16, the Indemnified Person engaged in Fraud. Notwithstanding the foregoing, except as otherwise provided in Section 5.16(d), the Company shall not be required to indemnify an Indemnified Person in connection with any claim, demand, action, suit or proceeding commenced (i) by such Person, unless the commencement of such claim, demand, action, suit or proceeding by such Person was authorized by the Board of Directors or (ii) by the Company against such Person upon the prior approval of the Board of Directors, in each case, except if and to the extent that such Indemnified Person is successful on the merits a final, non-appealable determination, in a proceeding brought in accordance with Section 12.10.
(c) Expenses (including reasonable legal fees and expenses) incurred by an Indemnified Person in connection with any claim, demand, action, suit or proceeding that may be subject to indemnification pursuant to Section 5.16(b) shall, from time to time, be advanced by the Company within thirty (30) days after a written request therefor, prior to a final and non-appealable determination that the Indemnified Person is not entitled to be indemnified, upon receipt by the Company of an undertaking by or on behalf of the Indemnified Person to repay such amount if it ultimately shall be determined that the Indemnified Person is not entitled to be indemnified pursuant to this Section 5.16.
(d) If a claim for indemnification or advancement of expenses under this Section 5.16 is not paid in full within thirty (30) days after a written claim therefor by an Indemnified Person has been received by the Company, such Indemnified Person may file a claim, in a proceeding brought in accordance with Section 12.10, to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim, including reasonable attorneys’ fees.
(e) The indemnification and advancement of expenses provided by or granted pursuant to this Section 5.16 shall not be deemed exclusive of, nor be deemed in limitation of, any other rights to which any Indemnified Person may be entitled under this Agreement, or any other agreement, vote of Shareholders or Disinterested Directors or otherwise, and such indemnification and advancement of expenses shall continue as to an Indemnified Person who has ceased to serve in such capacity. For the avoidance of doubt, and without limiting the generality of the foregoing, to the fullest extent now or hereafter permitted by applicable Law, the Company may enter into one or more agreements with any Person that provide for indemnification greater than or different than that provided pursuant to this Section 5.16.
(f) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person or any other Officer or other Person against any liability asserted against such Person and incurred by such Person in any capacity in connection with the Company or its business and affairs, or arising out of an Indemnified Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.16.
(g) This Section 5.16 shall not limit the right of the Company, to the fullest extent and in the manner permitted by applicable Law, to indemnify and to advance expenses to, and purchase and maintain insurance on behalf of, Persons other than Indemnified Persons (including, for the avoidance of doubt, any Officer, employee or agent of the Company or any director, manager, officer, partner, employee, consultant or agent of any Group Member).
(h) Each Covered Person and Officer shall, in the performance of his or her duties, or in taking any action (or omitting to take any action) or in connection with any consent or approval given or withheld, or otherwise relating to the Company or its business and affairs, be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any of the Officers or employees of the Company, or committees of the Board of Directors, or by any other Person (including legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisors) as to matters that the Covered Person or Officer reasonably believes are within such Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. Any action taken or omitted to be taken in reliance upon the opinion or advice (including an Opinion of Counsel) of such Persons shall be conclusively presumed to have been taken or omitted in good faith. Each Covered Person and Officer may rely, and shall be fully protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document presented to the Board of Directors or such other Covered Person or Officer and believed by such Director or other Covered Person or Officer to be genuine and to have been signed or presented by the appropriate party or parties.
(i) An Indemnified Person shall not be denied indemnification in whole or in part under this Section 5.16 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was not otherwise prohibited by the terms of this Agreement.
(j) The provisions of this Section 5.16 are for the benefit of the Indemnified Persons and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(k) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan, any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the IRS, penalties assessed by the United States Department of Labor, restitutions to such plan, trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this Section 5.16, to the maximum extent permitted by Law.
(l) Any indemnification pursuant to this Section 5.16 shall be made only out of the assets of the Company. In no event shall any of the Shareholders or any other Covered Person be subject to personal liability by reason of any claim for indemnification by any Person, whether pursuant to the indemnification provisions set forth in this Agreement or otherwise.
(m) The provisions of this Section 5.16 shall be deemed to be a contract between the Company and each Indemnified Person for so long as this Section 5.16 and the relevant provisions of applicable Law remain in effect, and no amendment, modification or repeal of this Section 5.16 or any other provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnified Person to receive indemnification and advancement of expenses from the Company, nor the obligations of the Company to indemnify, or advance the expenses of, any such Indemnified Person under and in accordance with the provisions of this AgreementSection 5.16 as in effect immediately prior to such amendment, whether express modification or impliedrepeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal. In the event that the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any Person or (iii) is dissolved, then, in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume all of the obligations of the Company set forth in this Section 5.16.
(n) If this Section 5.16 or any portion of this Section 5.16 shall be invalidated on any ground by a final, non-appealable determination, in a proceeding brought in accordance with Section 12.10, the Company shall nevertheless indemnify each Indemnified Person, to the fullest extent permitted by law, no Indemnitee any applicable portion of this Section 5.16 that shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to not have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteeinvalidated.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Global Indemnity Group, LLC)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding No Member, officer or other authorized agent of the Company shall be liable to the Company, or any other provision person or entity who has an interest in the Company, for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such person by this Agreement, whether express except that such person shall be liable for any such loss, damage or impliedclaim incurred by reason of such person’s willful misfeasance or bad faith. In the event that the Member, or any of its direct or indirect members, partners, directors, managing directors, officers, stockholders, employees, agents, affiliates or controlling persons, or any officer of the Company (collectively, the “Indemnified Persons”; and each an “Indemnified Person”), becomes involved, in any capacity, in any threatened, pending or completed, action, suit proceeding or investigation, in connection with any matter arising out of or relating to the Company’s business or affairs, to the fullest extent permitted by applicable law, no Indemnitee shall any legal and other expenses (including the cost of any investigation and preparation) incurred by such Indemnified Person in connection therewith shall, from time to time, be liable advanced by the Company prior to the Company final disposition of such action, suit, proceeding or any Member for any act or omission in relation to investigation upon receipt by the Company of an undertaking by or this Agreement on behalf of the Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, suit proceeding or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconductinvestigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (collectively, “Costs”), to which such amendmentan Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company’s business or affairs, only except to the extent that any such amendment permits Costs result solely from the Company to provide broader willful misfeasance or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance or bad faith of such Indemnified Person) the foregoing indemnification rights than such law permitted the Company to provide prior is unavailable to such amendment)Indemnified Person, or insufficient to hold it harmless, then the Company shall indemnify any Indemnitee who was contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is made or is threatened appropriate to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in reflect not only the right relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company or otherwise)and such Indemnified Person, whether civilas well as any relevant equitable considerations. The reimbursement, criminal, administrative, arbitrative or investigative, indemnity and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right contribution obligations of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee under this Section shall be secondary in addition to any liability which the Company may otherwise have to any Indemnified Person and all indemnification shall be binding upon and inure to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”)any successors, assigns, heirs and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit personal representatives of the Company or and any IndemniteeIndemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section shall be limited to the Company’s assets, and no Member shall have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fulcrum IT Services, LLC)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. (a) To the fullest extent permitted by lawthe Act and, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits required by the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)Act, the Company shall indemnify and hold harmless any Indemnitee person who was or is made a member, officer or is threatened manager of the Company from and against any and all liability, loss suffered and expenses (including counsel fees and disbursements), judgments, fines (including excise taxes assessed on a person with respect to an employee benefit plan), and amounts paid in settlement that may be made imposed upon or incurred by him in connection with, or as a party to or is otherwise involved in result of, any threatened, pending pending, or completed action, suit or proceeding (brought in the right of the Company or otherwise)proceeding, whether civil, criminal, administrative, arbitrative administrative or investigative, and investigative (whether formal or informal (hereinafter a “Proceeding”not by or in the right of the Company), including appealsin which he is or may become involved, as a party, witness or otherwise, by reason of his the fact that he is or her was a member, officer or its status manager of the Company or, while a member, officer or manager of the Company, is or was serving at the request of the Company as an Indemnitee officer, director, incorporator, employee, partner, trustee or by reason agent of any action alleged to have been taken another corporation, partnership, joint venture, trust or omitted other enterprise (including an employee benefit plan), whether or not he continues to be taken by Indemnitee in such capacity, for at the time such expenses and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit shall have been imposed or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconductincurred. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c)however, the Company shall not be required to indemnify an Indemnitee such a person who is or was a member, officer or manager in connection with any an action, suit or proceeding (or part thereof) (i) commenced thereof initiated by such Indemnitee only if person unless the commencement initiation of such action, suit or proceeding (or part thereof) by such Indemnitee person was specifically authorized by the Managing Member. The right of indemnification provided under this paragraph shall inure whether or not such expenses and judgments, fines and amounts paid in settlement are imposed or incurred based on matters which antedate the adoption of this Article 21. Such right of indemnification shall continue as to a person who has ceased to be a member, officer or manager of the Company, and shall inure to the benefit of the heirs and legal representatives of such a person.
(iib) Expenses (including caused fees) incurred by a person who is or in the right was a member, officer or manager of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee in defending or investigating a threatened or pending action, suit or proceeding in which such person is or may become involved, as a party, witness or otherwise, by reason of the type identified in clause (e) fact that he is or was a member, officer or manager of the definition Company or, while a member, officer or manager of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee the Company, is entitled from or was serving at the relevant request of the Company as director, officer, incorporator, employee, partner, trustee or agent of another corporation, partnership, joint venture, trust or other Person enterprise (including any payment made to such Indemnitee under any insurance policy issued to or for the an employee benefit of such Person or Indemnitee) (the “Primary Indemnification”plan), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the fullest extent not in conflict with such policyprohibited by law, be secondary paid by the Company in advance of final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Article 21 or otherwise.
(c) The rights to indemnification and advancement of expenses provided by this Article 21 stall not be deemed exclusive of any and all payment to other rights which such Indemnitee is entitled from are or may be provided now or in the future under any relevant insurance policy issued to provision currently in effect or for the benefit hereafter adopted of this Agreement, by any agreement, provision of the Company Certificate of Formation, by vote or any Indemniteeresolution of members, by resolution of managers, by provision of law or otherwise.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CEDC Finance Corp LLC)
Exculpation and Indemnification. Notwithstanding (a) The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee terms and provisions of this Agreement shall govern and control in all respects.
(b) The Escrow Agent shall not be personally liable to the Company or any Member for any act that it may do or omission omit to do hereunder in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad good faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but and in the case exercise of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken own best judgment. Any act done or omitted to be taken done by Indemnitee the Escrow Agent pursuant to the good faith advice of its attorneys shall be deemed conclusively to have been performed or omitted in such capacitygood faith by the Escrow Agent. If the Escrow Agent becomes involved in litigation on account of this Agreement, it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and against all loss and liability suffered and expenses (including costs, reasonable attorneys’ fees), judgmentscharges, fines disbursements, and amounts paid in settlement reasonably incurred by such Indemnitee expenses in connection with such action, suit or proceeding, including appealslitigation; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution reimburse itself therefor out of the property deposited hereunder, and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation.
(c) In the event the Escrow Agent is notified of any dispute, disagreement or legal action between the Buyer, Seller and any third party relating to or arising in connection with the escrow, the Escrow Amount, or the performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such controversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the Clerk of the Court or the Arbitrator, as applicable, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which the Buyer or Seller agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
(d) The Buyer and Seller hereby agree, jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all reasonable costs, damages, judgments, attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liabilities of every kind and nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from the Escrow Agent’s gross negligence or willful misconduct, and to pay the Escrow Agent on demand the amount of all such reasonable costs, damages, judgments, attorneys’ fees, expenses, obligations, and liabilities. The reasonable costs and expenses of enforcing this right of indemnification from also shall be paid equally by the Buyer and Seller. The foregoing indemnities in this Section 11(d) shall survive the resignation or subrogation substitution of the Escrow Agent or the termination of this Agreement.
(e) The Escrow Agent shall have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder, unless the Escrow Agent has actual knowledge that the genuineness, authenticity, or sufficiency are in doubt.
(f) The Escrow Agent shall be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind, unless the Escrow Agent has actual knowledge otherwise.
(g) The duties and obligations of the Escrow Agent shall be limited to and determined solely by the express provisions of this Escrow Agreement and no implied duties or obligations shall be read into this Escrow Agreement against the CompanyEscrow Agent. The indemnification Escrow Agent is not bound by and is under no duty to inquire into the terms or validity of any other Indemnitee shallagreements or documents, including any agreements or documents which may be related to, referred to in or deposited with the extent not Escrow Agent in conflict connection with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Escrow Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Employment Holdings, Inc.)
Exculpation and Indemnification. Notwithstanding (a) The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement which obligations and duties shall be deemed purely ministerial in nature. No additional obligations and duties of the Escrow Agent shall be inferred or implied from the terms of any other provision documents or agreements, notwithstanding references herein to other documents or agreements. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control the duties of the Escrow Agent in all respects. The Escrow Agent shall not be subject to, or be under any obligation to ascertain or construe the terms and conditions of any other instrument, or to interpret this Agreement in light of any other agreement whether express or implied, not now or hereafter deposited with or delivered to the fullest extent permitted Escrow Agent or referred to in this Agreement. The Escrow Agent shall not be obligated to inquire as to the form, execution, sufficiency, or validity of any such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same. The Escrow Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument, or document. The parties hereto shall provide the Escrow Agent with a list of authorized representatives, initially authorized hereunder as set forth on Exhibit B; as such Exhibit B may be amended or supplemented from time to time by lawdelivery of a revised and re-executed Exhibit B to the Escrow Agent. The Escrow Agent may, no Indemnitee but is not required to, investigate payment instructions, make further inquiries, and, where required, block or reject services due to domestic or global economic or trade-based sanctions. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it to have been sent or given by the parties or by a person or persons authorized by the parties. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an authorized representative with the following caveat, the Buyer and Sellers agree to indemnify and hold harmless the Escrow Agent against any and all claims, taxes, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys' fees) (collectively, "Losses") incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent's reliance upon and compliance with instructions or directions given by written or electronic transmission, provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person shall not be deemed to constitute gross negligence or willful misconduct.
(b) In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an individual designated on Exhibit B. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the person or persons designated for verifying such instructions on Exhibit B (such person verifying the instruction shall be different than the person initiating the instruction). The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The parties hereto aside from the Escrow Agent agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
6.2 The Escrow Account shall be maintained in accordance with applicable laws, rules and regulations and policies and procedures of general applicability to escrow accounts established by the Escrow Agent. The Escrow Agent shall not be liable to the Company or any Member for any act that it may do or omission omit to do hereunder in relation to good faith and in the Company exercise of its own best judgment or this Agreement or for any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith damages not directly resulting from its gross negligence or willful misconduct. To Without limiting the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right generality of the Company foregoing sentence, it is hereby agreed that in no event will the Escrow Agent be liable for any lost profits or otherwise)other indirect, whether civilspecial, criminal, administrative, arbitrative incidental or investigative, and whether formal consequential damages which the parties may incur or informal (hereinafter a “Proceeding”), including appeals, experience by reason of his having entered into or her relied on this Agreement or its status as an Indemnitee arising out of or by reason in connection with the Escrow Agent’s duties hereunder, notwithstanding that the Escrow Agent was advised or otherwise made aware of the possibility of such damages, provided, however, that such damages have not arisen from the gross negligence or willful misconduct of the Escrow Agent. The Escrow Agent shall not be liable for acts of God, acts of war, breakdowns or malfunctions of machines or computers, interruptions or malfunctions of communications or power supplies, labor difficulties, actions of public authorities, or any action alleged to have been taken other similar cause or catastrophe beyond the Escrow Agent’s reasonable control. Any act done or omitted to be taken done by Indemnitee the Escrow Agent pursuant to the written advice of its attorneys shall be conclusively presumed to have been performed or omitted in good faith by the Escrow Agent.
6.3 In the event the Escrow Agent is notified of any dispute, disagreement or legal action relating to or arising in connection with the escrow, the Escrow Fund, or the performance of the Escrow Agent's duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such capacitycontroversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent's reasonable discretion, it may require. Furthermore, if confronted with conflicting demands such that it determines in good faith that it risks incurring expense or liability regardless of any action it may take or refrain from taking, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the court in which such action is filed, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which Buyer and Sellers (on a joint and several basis as among the Sellers) agree solely among themselves to pay, provided, however, Buyer, on the one hand, and Sellers (jointly and severally as among the Sellers), on the other hand, shall each be responsible for one-half of any such costs, expenses, charges, and reasonable attorney’s fees. Buyer shall promptly reimburse Sellers for any payments made to the Escrow Agent by Sellers pursuant to this Section 6.3 that in the aggregate are in excess of Sellers’ collective share of one-half of any Losses pursuant to this Section 6.3. Sellers (jointly and severally) shall promptly reimburse Buyer for any payments made to the Escrow Agent by Buyer pursuant to this Section 6.3 that are in excess of Buyer’s share of one-half of any Losses pursuant to this Section 6.3. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all subsequent obligations and liability otherwise imposed by the terms of this Agreement.
6.4 The Buyer and Sellers hereby agree, on a joint and several basis, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all loss costs, taxes, damages, judgments, reasonable attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liability suffered liabilities of every kind and expenses (including nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from the Escrow Agent’s gross negligence or willful misconduct, and to pay the Escrow Agent on demand the amount of all such costs, damages, judgments, attorneys’ fees), judgmentsexpenses, fines obligations, and amounts liabilities. Without limitation, the foregoing indemnities shall extend to any breach of the representations, warranties or covenants in Section 10.3 of this Agreement. The costs and expenses of enforcing this right of indemnification also shall be paid in settlement reasonably incurred by such Indemnitee in connection with such actionthe Buyer and Sellers. Buyer, suit or proceedingon the one hand, including appeals; provided that such Indemnitee and Sellers (on a joint and several basis as among the Sellers) agree solely among themselves to each be responsible for one-half of any Losses pursuant to this Article VI. Buyer shall not be entitled to indemnification hereunder if, but only promptly reimburse Sellers for any payments made to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Escrow Agent by Sellers pursuant to this Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or 6.4 that in the aggregate are in excess of Sellers’ collective share of one-half of any Losses pursuant to this Section 6.4. Sellers (jointly and severally) shall promptly reimburse Buyer for any payments made to the Escrow Agent by Buyer pursuant to this Section 6.4 that are in excess of Buyer’s share of one-half of any Losses pursuant to this Section 6.4. The costs and expenses of enforcing this right of the Company only if the Managing Member has provided its prior written consentindemnification also will be paid one-half by Buyer and one-half by Sellers. The indemnification of an Indemnitee foregoing indemnities in this paragraph shall survive the resignation or substitution of the type identified in clause (e) Escrow Agent and the termination of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding any other provision of (a) Innoviva will, except as otherwise provided in this Agreement, whether express or implied, Section 5 and to the fullest extent permitted by law, no Indemnitee indemnify and keep the Indemnified Persons (as defined below) harmless against all proceedings, actions, claims and demands whatsoever (collectively “Claims”) which may be brought or made against the Indemnified Persons in any jurisdiction whatsoever in connection with, arising out of or related to this Agreement, including the Services provided hereunder by Sarissa, as well as all awards, liabilities, costs, expenses (including reasonable legal fees), as and when incurred, and losses (collectively “Liabilities”) actually suffered as a result of or in connection with such Claims (including investigating, preparing, or defending any such Claims) by Sarissa, any of its partners, members, officers, employees, agents or representatives or any of their respective affiliates (each, an “Indemnified Person”). Subject to Sections 1(g) hereof and 5(c) below, none of Sarissa or any Indemnified Person shall have any liability (whether direct or indirect, in contract, tort or otherwise) to Innoviva or any of its affiliates in connection with any of the Services provided by Sarissa or otherwise in connection with this Agreement.
(b) If any Claim is brought, threatened or asserted against Sarissa or any other Indemnified Person, Sarissa shall promptly notify Innoviva; provided that the failure to so notify will not relieve Innoviva from any indemnity liabilities hereunder except to the extent such failure results in the forfeiture by Innoviva of rights or defenses. Upon prior written notice to Sarissa, Innoviva shall be liable entitled to, at its own expense, assume the defense of any Claims which become the subject of this indemnity (other than any Claim involving allegations of criminal activity); provided that any legal counsel retained by Innoviva for any such defense shall be subject to the Company prior written approval of Sarissa, in each instance, such approval not to be unreasonably withheld, conditioned or delayed. In any such Claim, the defense of which Innoviva shall have so assumed, Sarissa shall have the right to retain counsel of its own choice to represent it, but the expenses of such counsel shall be at the expense of Sarissa unless (i) Innoviva and Sarissa shall have mutually agreed in writing to the retention of such counsel, (ii) Innoviva shall have failed to employ counsel reasonably satisfactory to Sarissa in a timely manner, or (iii) the named parties to any such Claim (including any impleaded parties) include Innoviva and Sarissa or any Member for any act other Indemnified Person and representation of both parties by the same counsel would, in the opinion of external counsel to Sarissa, create an actual or omission potential conflict of interest, in relation which case of clauses (i), (ii) or (iii), such expenses of counsel shall be at the expense of Innoviva. It is understood, however, that in the situation in which the expenses of counsel of Sarissa are not at the expense of Sarissa pursuant to the Company preceding sentence, Innoviva shall, in connection with any one such Claim or separate but substantially similar or related Claims, be responsible for the reasonable expenses of only one separate firm of attorneys (in addition to local counsel) at any time for all Indemnified Persons, which firm (and local counsel) shall be designated in writing by Sarissa. The counsels so designated by Sarissa, if any, shall, to the extent consistent with its professional responsibilities, cooperate with Innoviva and any counsel designated by Innoviva. Innoviva further agrees that it shall not agree to any settlement or consent to any award in respect to any Claims that are the subject of this Agreement indemnity without Sarissa’s prior written consent (with such consent not to be unreasonably withheld, conditioned or delayed); provided that no such consent shall be needed if such settlement or consent (x) includes a release of Sarissa and any other Indemnified Party from any Liabilities arising out of such Claim and (y) does not include any admission of fault or culpability by or on behalf of Sarissa or any transaction contemplated hereby taken other Indemnified Person. Sarissa and the other Indemnified Parties shall not agree to any settlement or omitted by an Indemnitee unless consent to any award in respect to any Claims or Liabilities that are the subject of this indemnity without the prior written consent of Innoviva, (with such Indemnitee’s conduct constituted fraudconsent not to be unreasonably withheld, bad faith conditioned or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended delayed) .
(but in the case of any such amendment, only c) This indemnity and exculpation undertaking shall not apply to the extent that such amendment permits the Company Claims or Liabilities are finally (not subject to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made further appeal) determined by a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged competent court to have been taken resulted from Sarissa’s or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemniteean Indemnified Party’s conduct constituted fraud, bad faith faith, gross negligence or willful misconduct.
(d) Sarissa makes no warranties with respect to any advice provided pursuant to this Agreement or Deliverables, including any information, data, opinions or projections therein (except for the use of good faith and reasonable diligence in the preparation thereof) and such items are subject to error. Notwithstanding While Sarissa would endeavor to provide high quality Services to Innoviva, it does not make any commitment as to the preceding sentenceoutcome of any Annual Workplan, except as otherwise provided in Section 10.02(c)including that any Potential Transactions will be completed or that such Potential Transaction will generate positive returns. Since the decision to pursue any Potential Transaction rests solely with Innoviva, the Company Sarissa shall be required to indemnify an Indemnitee have no liability or obligation in connection with any actionaction taken or omitted by Innoviva. In addition, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, Innoviva acknowledges and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or agrees that Sarissa does not provide coverage (e.g.any tax, a self-insured retention amount under an insurance policy). No legal or accounting advice to Innoviva, and Innoviva shall obtain any such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteeadvice on its own.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless in good faith and in the reasonable belief that such Indemnitee’s conduct constituted fraud, bad faith act or willful misconductomission was in the best interests of the Company. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by an Indemnitee in such capacity, for from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith faith, gross negligence or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the ““ Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured self -insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement of rights provided pursuant to the Existing Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fathom Digital Manufacturing)
Exculpation and Indemnification. Notwithstanding (a) The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee terms and provisions of this Agreement shall govern and control in all respects.
(b) The Escrow Agent shall not be personally liable to the Company or any Member for any act that it may do or omission omit to do hereunder in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad good faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but and in the case exercise of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken own best judgment. Any act done or omitted to be taken done by Indemnitee the Escrow Agent pursuant to the good faith advice of its attorneys shall be deemed conclusively to have been performed or omitted in such capacitygood faith by the Escrow Agent. If the Escrow Agent becomes involved in litigation on account of this Agreement, it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and against all loss and liability suffered and expenses (including costs, reasonable attorneys’ fees), judgmentscharges, fines disbursements, and amounts paid in settlement reasonably incurred by such Indemnitee expenses in connection with such action, suit or proceeding, including appealslitigation; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution reimburse itself therefor out of the property deposited hereunder, and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation.
(c) In the event the Escrow Agent is notified of any dispute, disagreement or legal action between the Buyer, Seller and any third party relating to or arising in connection with the escrow, the Escrow Amount, or the performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such controversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the Clerk of the Court or the Arbitrator, as applicable, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which the Buyer or Seller agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
(d) The Buyer and Seller hereby agree, jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all reasonable costs, damages, judgments, attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liabilities of every kind and nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from the Escrow Agent’s gross negligence or willful misconduct, and to pay the Escrow Agent on demand the amount of all such reasonable costs, damages, judgments, attorneys’ fees, expenses, obligations, and liabilities. The reasonable costs and expenses of enforcing this right of indemnification from also shall be paid equally by the Buyer and Seller. The foregoing indemnities in this Section 7(d) shall survive the resignation or subrogation substitution of the Escrow Agent or the termination of this Agreement.
(e) The Escrow Agent shall have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder, unless the Escrow Agent has actual knowledge that the genuineness, authenticity, or sufficiency are in doubt.
(f) The Escrow Agent shall be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind, unless the Escrow Agent has actual knowledge otherwise.
(g) The duties and obligations of the Escrow Agent shall be limited to and determined solely by the express provisions of this Escrow Agreement and no implied duties or obligations shall be read into this Escrow Agreement against the CompanyEscrow Agent. The indemnification Escrow Agent is not bound by and is under no duty to inquire into the terms or validity of any other Indemnitee shallagreements or documents, including any agreements or documents which may be related to, referred to in or deposited with the extent not Escrow Agent in conflict connection with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Escrow Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Employment Holdings, Inc.)
Exculpation and Indemnification. Notwithstanding (a) The Company shall indemnify, defend and hold harmless the Trading Advisor and its affiliates and their respective directors, officers, shareholders, members, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any investigatory, legal and other provision expenses incurred in connection with, and any amounts paid in, any settlement; provided that the Company shall have approved such settlement, such approval not to be unreasonably withheld) resulting from a demand, claim, lawsuit, action or proceeding relating to any of such person’s actions or capacities relating to the business or activities of the Company pursuant to this Agreement; provided that the conduct of such person which was the subject of the demand, claim, lawsuit, action or proceeding did not constitute gross negligence, intentional misconduct or a material breach of this Agreement or of any fiduciary obligation to the Company and was done in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Company. The termination of any demand, claim, lawsuit, action or proceeding by settlement shall not, in itself, create a presumption that the conduct in question was not undertaken in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company.
(b) The Trading Advisor shall indemnify, defend and hold harmless the Company, the Manager, their respective affiliates and their respective directors, officers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any reasonable investigatory, legal and other expenses incurred in connection with, and any amounts paid in, any settlement; provided that the Trading Advisor shall have approved such settlement, such approval not to be unreasonably withheld) resulting from a demand, claim, lawsuit, action or proceeding relating to any action or omission of the Trading Advisor or any of its respective officers, directors or employees relating to the business or activities of such person under this Agreement or relating to the management of an account of the Company provided: the action or omission of such person which was the subject of the demand, claim, lawsuit, action or proceeding constituted gross negligence or intentional misconduct or a material breach of this Agreement or was an action or omission taken otherwise than in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company.
(c) The Trading Advisor, its officers, directors, employees, members and shareholders shall not be liable to the Company, the Manager, their respective officers, directors, shareholders, employees, controlling persons or members or to any of their successors or assigns except by reason of acts or omissions in material breach of the express terms of this Agreement, whether express or implieddue to their intentional misconduct or gross negligence, to or by reason of not having acted in good faith and in the fullest extent permitted by lawreasonable belief that such actions or omissions were in, no Indemnitee or not opposed to, the best interests of the Company.
(d) The foregoing agreement of indemnity shall be liable in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified party.
(e) In the Company or any Member for any act or omission in relation event that a person entitled to the Company or indemnification under this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or Section 13 is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed an action, suit or proceeding (brought alleging both matters for which indemnification may be due hereunder and matters for which indemnification may not be due hereunder, such person shall be indemnified only in the right respect of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal former matters.
(hereinafter a “Proceeding”), including appeals, f) Promptly after receipt by reason any of his or her or its status as an Indemnitee or by reason the indemnified parties under this Agreement of notice of any demand, claim, lawsuit, action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee the indemnified party shall not notify the indemnifying party in writing of the commencement thereof if a claim for indemnification in respect thereof is to be entitled to indemnification hereunder if, but only made under this Agreement. Except to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding that the preceding sentence, except as otherwise provided in Section 10.02(c)indemnifying party is not materially prejudiced thereby, the Company omission so to notify shall be required relieve the indemnifying party from any obligation or liability which it may have to indemnify an Indemnitee in connection with any actionsuch indemnified party under this section. In the event that such demand, suit claim, lawsuit, action or proceeding (or part thereof) (i) commenced by such Indemnitee only if is brought against a person entitled to be indemnified under this Agreement, and the indemnifying party is notified of the commencement of such actionthereof, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person indemnifying party shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shallparticipate therein and, to the extent that the indemnifying party may wish to assume the defense thereof, with counsel selected by the indemnifying party and approved by the indemnified person (provided that approval may not be unreasonably withheld), and after notice from the indemnifying party to such indemnified person of the indemnifying party’s election so as to assume the defense thereof, the indemnifying party shall not be liable to such person under this section for any legal or other expenses subsequently incurred by such person in conflict connection with the defense thereof, unless the indemnifying party approves the employment of separate counsel by such policyperson (it being understood, however, that the indemnifying party shall not be secondary to any and liable for legal or other expenses of more than one separate firm of attorneys for all payment to such persons indemnified hereunder, which such Indemnitee is entitled from any relevant insurance policy issued to firm shall be designated in writing by the Trading Advisor or for the benefit of Company, as the case may be).
(g) Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver by the Company or the Manager of any Indemniteeof its legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.
(h) The Trading Advisor represents and warrants that neither it nor any affiliate thereof has entered into, on or prior to the date hereof, any investment advisory agreement with any advisory client or (without duplication) any investment fund managed or advised by the Trading Advisor or an affiliate that is in effect as of the date hereof and contains provisions that provide for a standard of care on the part of the Trading Advisor or limitation to any indemnification obligations on the part of the Trading Advisor that are more beneficial, in the aggregate, to the advisory client or the investment fund than the standard of care or indemnification obligations provided for in this Agreement (e.g., where the Trading Advisor is liable for its negligence) (“Indemnity Rights”). If, after the date hereof, the Trading Advisor enters into an agreement with any advisory client or investment fund managed or advised by the Trading Advisor or an affiliate that provides such client or investment fund with more favorable Indemnity Rights, in the aggregate, the Trading Advisor agrees to provide the Manager and the Company with notice of any such agreement and the terms of such Indemnity Rights, and the Manager and the Company within 30 days’ receipt of such notice, will have the right, but not the obligation, upon written request delivered to the Trading Advisor to elect to receive such Indemnity Rights (effective as of the date such Indemnity Rights went into effect pursuant to the applicable agreement). This Section 13(h) shall not apply to investment advisory agreements entered into by the Trading Advisor or its affiliates (i) which are required by applicable law or regulation to contain more favorable Indemnity Rights or (ii) with advisory clients or investment funds which are or are owned by a domestic or foreign pension or retirement plan or scheme or which relate to assets which are deemed to be a plan asset under DOL Regulations.
Appears in 1 contract
Samples: Advisory Agreement (BlackRock Global Horizons I L.P.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the A. The Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall may indemnify any Indemnitee Person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit suit, proceeding or proceeding (brought in the right of the Company or otherwise)investigation, whether civil, criminal, investigative or administrative, arbitrative or investigative, and whether formal external or informal internal to the Company (hereinafter a “Proceeding”other than an action or suit brought by or in the right of the Company), including appeals, by reason of his the fact that such person is or her was a Manager, Member, employee or its status as trustee of the Company, or that, such person is or was an Indemnitee Affiliate of a Manager, Member, employee or by reason trustee of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacitythe Company, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnitee Person in connection with such action, suit or proceeding, including appeals; provided that or any appeal therein, if such Indemnitee shall Person acted in good faith and in a manner he, she, or it reasonably believed to be in or not be entitled to indemnification hereunder if, but only opposed to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding best interests of the preceding sentence, except as otherwise provided in Section 10.02(c)Company, the liability or loss was not the result of negligence or misconduct by such Person and the indemnification is recoverable only out of the assets of the Company shall be required and not from the Members, and with respect to indemnify an Indemnitee in connection with any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of any action, suit or proceeding (whether by judgment, order, settlement, conviction, or part thereof) upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, that such Person had reasonable cause to believe that his, her or its conduct was unlawful. Notwithstanding anything to the contrary in Section 6.3A hereof, the Company shall not indemnify any Person for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities law by such Person unless one or more of the following conditions are met: (i) commenced by there has been a successful adjudication on the merits of each count involving alleged securities law violations as to such Indemnitee only if the commencement of such actionPerson, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) the claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to such Person, or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.
B. The Company may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit brought by or in the right of the Company only if the Managing Member has provided to procure a judgment in its prior written consent. The indemnification of an Indemnitee favor by reason of the type identified in clause (e) fact that he, she or it is or was a Manager, Member, employee or trustee of the definition Company or is or was an Affiliate of Indemnitee a Manager, Member, employee or trustee of the Company against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection with the defense, settlement or appeal of such action or suit if such Person acted in good faith and in a manner such Person reasonably believed to be or not opposed to the best interests of the Company, except that the indemnification is recoverable only out of the assets of the Company and not from the Members and that no indemnification shall be secondary to made in respect of any and all indemnification claim, issue or matter as to which such Indemnitee is entitled from Person shall have been adjudicated to be liable for negligence or misconduct in the relevant other Person (including any payment made performance of his, her or its duty to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), Company unless and will only be paid to the extent that the Primary Indemnification court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper. Notwithstanding anything to the contrary in Section 6.3B hereof, the Company shall not paid and/or does not provide coverage indemnify any Person for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities law by such Person unless one or more of the following conditions are met: (e.g.i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to such Person, (ii) the claims have been dismissed with prejudice on the merits by a self-insured retention amount court of competent jurisdiction as to such Person, or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.
C. Any indemnification under an insurance policy)Sections 6.3.A or 6.3.B hereof (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that the indemnification of the Person in question is proper in the circumstances because that Person has met the applicable standards of conduct set forth in Sections 6.3.A or 6.3.B hereof. No Such determination shall be made by Inland Parent.
D. To the extent that any Person referred to in Sections 6.3.A or 6.3.B hereof has been successful on the merits or otherwise in defense of any action, suit, proceeding or investigation, or any appeal or in defense of any claim, issue or matter therein, or on appeal from any such proceeding, action, suit, claim or matter, such Person shall be indemnified against all expenses (including attorney’s fees) incurred in connection therewith.
E. Expenses incurred in any action, suit, proceeding or investigation or any appeal therefrom may be paid by the Company in advance of the final disposition of such matter, as authorized by the Manager, only if all of the following conditions are satisfied: (i) the Person seeking payment delivers an acceptable undertaking by or on behalf of such Person to repay such amount (together with the applicable legal rate of interest thereon) if it shall ultimately be determined that such Person is not entitled to contribution indemnification; (ii) the legal action relates to acts or indemnification from omissions with respect to the performance of duties or subrogation against services by the Person, for or on behalf of the Company. ; and (iii) the legal action is initiated by a third party who is not a Member acting in his or her capacity as such and a court of competent jurisdiction specifically approves advancement.
F. The indemnification of provided by this Section 6.3 shall not be deemed exclusive of, and shall not affect, any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment rights to which such Indemnitee is any Person seeking indemnification may be entitled from under any relevant insurance policy issued law, agreement, or otherwise, and shall continue and inure to or for the benefit of the heirs, executors and administrators of such a Person.
G. The Company may purchase and maintain insurance on behalf of any Person who is or was a Manager, Member, employee or trustee of the Company against any Indemniteeliability asserted against such Person and incurred by him, her or it in any such capacity, or arising out of his, her or its status as such, whether or not the Company would have the power to indemnify such Person against any such liability under the provisions of this Section. Such insurance may include “tail” coverage for periods after termination of service in such capacity or after liquidation, merger, consolidation or other change in the Company.
H. The Company may, at its cost and expense, defend with counsel of the Company’s choice or approval, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding or investigation, whether civil, criminal or administrative, and whether external or internal to the Company by reason of the fact that he, she or it was acting in any capacity described in Sections 6.3.A or 6.3.B hereof if he, she or it acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Company and with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation and Indemnification. Notwithstanding 16.1 Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other provision of this Agreementaction hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether express incorporated herein or impliedprovided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the fullest extent permitted proper person, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by lawit hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this paragraph include, no Indemnitee without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a person if it bears, as sender, the person’s e-mail address.
16.2 The Escrow Agent shall not be liable to the Company or any Member anyone for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
16.3 The Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in breach of this Agreement.
16.4 The Escrow Agent is hereby authorized, in making or disposing of any investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
16.5 Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
16.6 All deposits and payments hereunder, or pursuant to the terms hereof (including without limitation all payments to the Escrow Agent pursuant to Section 4), shall be in U.S. dollars.
16.7 Each of the Interested Parties and Escrow Contributors covenants and agrees, jointly and severally, to indemnify the Escrow Agent (and its directors, officers and employees) and hold it (and such directors, officers and employees) harmless from and against any loss, liability, damage, cost and expense of any nature incurred by the Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties hereunder, including but not limited to attorney’s fees and other costs and expenses of defending or preparing to defend against any claim of liability unless and except to the extent such loss, liability, damage, cost and expense shall be caused by the Escrow Agent’s gross negligence, or willful misconduct. The foregoing indemnification and agreement to hold harmless shall survive the termination of this Agreement.
16.8 Each of the Interested Parties and Escrow Contributors agrees, jointly and severally, (i) to assume any and all loss obligations imposed now or hereafter by any applicable tax law with respect to any payment or distribution of the Escrow Property or performance of other activities under this Agreement, (ii) to instruct the Escrow Agent in writing with respect to the Escrow Agent’s responsibility for withholding and other taxes, assessments or other governmental charges, and to instruct the Escrow Agent with respect to any certifications and governmental reporting that may be required under any laws or regulations that may be applicable in connection with its acting as Escrow Agent under this Agreement, and (iii) to indemnify and hold the Escrow Agent harmless from any liability suffered or obligation on account of taxes, assessments, additions for late payment, interest, penalties, expenses and other governmental charges that may be assessed or asserted against the Escrow Agent in connection with, on account of or relating to the Escrow Property, the management established hereby, any payment or distribution of or from the Escrow Property pursuant to the terms hereof or other activities performed under the terms of this Agreement, including without limitation any liability for the withholding or deduction of (or the failure to withhold or deduct) the same, and any liability for failure to obtain proper certifications or to report properly to governmental authorities in connection with this Agreement, including costs and expenses (including attorneys’ feesreasonable legal fees and expenses), judgments, fines interest and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consentpenalties. The foregoing indemnification and agreement to hold harmless shall survive the termination of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Exculpation and Indemnification. Notwithstanding 5.1 The obligations and duties of the Escrow Agent will be limited to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto, including the Stock Purchase Agreement, conflict or are inconsistent with any of the terms and provisions of this Agreement, solely with respect to the Escrow Agent and not with respect to the Buyer or Sellers' Representative, the terms and provisions of this Agreement will govern and control in all respects. The Escrow Agent will not be subject to, nor be under any obligation to ascertain or construe the terms and conditions of any other instrument, whether express or impliednot now or hereafter deposited with or delivered to the Escrow Agent or referred to in this Agreement, nor will the Escrow Agent be obligated to inquire as to the form, execution, sufficiency, or validity of any such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same except as otherwise provided herein.
5.2 The Escrow Agent will not be personally liable for any act that it may do or omit to do hereunder in good faith. Any act done or omitted to be done by the Escrow Agent in good faith in accordance with the advice of its attorneys will be deemed conclusively to have been performed or omitted in good faith by the Escrow Agent, except in the case of the Escrow Agent’s own gross negligence.
5.3 In no event will the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent will not be obligated to take any legal action or commence any proceeding in connection with the Escrow Shares, any account in which Escrow Shares are deposited, this Agreement or the Stock Purchase Agreement, or to appear in, prosecute or defend any such legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and will incur no liability and will be fully indemnified from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel, except in the case of the Escrow Agent’s own gross negligence or willful misconduct which has been finally adjudicated. Fees for legal counsel will be paid, upon demand, one half by Buyer and one-half by Sellers' Representative on behalf of the Sellers. The Escrow Agent is authorized, in its sole discretion, to comply with final orders issued or process entered by any court with respect to the fullest Escrow Account, without determination by the Escrow Agent of such court's jurisdiction in the matter. If any portion of the Escrow Account is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property will be stayed or enjoined by any court order, or in case any order, judgment or decree will be made or entered by any court affecting such property or any part thereof, then and in any such event, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the need for appeal or other action; and if the Escrow Agent complies with any such order, writ, judgment or decree, it will not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
5.4 In the event that (i) Escrow Agent is notified of any dispute, disagreement or legal action between Buyer, Sellers' Representative, Sellers or any third party relating to or arising in connection with the escrow, the Escrow Account, or the performance of the Escrow Agent's duties under this Agreement, (ii) Escrow Agent is unable to determine, to Escrow Agent's sole satisfaction, the proper disposition of all or any portion of the Escrow Shares or Escrow Agent's proper actions with respect to its obligations hereunder, or (iii) the Buyer and the Sellers’ Representative have not within 60 days of the furnishing by Escrow Agent of a notice of resignation pursuant to Section 7.1 hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both of the following actions:
(a) suspend the performance of any of its obligations (including without limitation any disbursement obligations) under this Agreement and hold all documents and funds and may wait for settlement of any such controversy by (x) an order of court having jurisdiction over the matter that is final and not subject to further court proceedings or appeal, and as to which notice of appeal has not been timely filed or served, or (y) joint written instructions received from Buyer and Sellers' Representative; or
(b) petition (by means of an interpleader action or any other appropriate method) any court of competent jurisdiction in any venue convenient to Escrow Agent, for instructions with respect to such dispute or uncertainty, and to the extent required or permitted by law, no Indemnitee shall pay into such court, for holding and disposition in accordance with the instructions of such court, all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys' fees incurred by the Escrow Agent due to the interpleader action and which Buyer and the Sellers' Representative agree to pay one-half each. In such event, the Escrow Agent will not be liable to the Company for interest or damage, specifically including any Member for any act liability or omission in relation to the Company claimed liability that may arise, or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken arisen, out of or omitted as a result of any delay in the disbursement of the Escrow Account or any delay in or with respect to any other action required or requested of Escrow Agent. Upon initiating such action, the Escrow Agent will be taken fully released and discharged of and from all obligations and liability imposed by Indemnitee in such capacitythe terms of this Agreement.
5.5 Buyer and the Sellers' Representative hereby agree, for jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all loss and liability suffered and expenses (including attorneys’ fees)costs, damages, judgments, fines attorneys' fees for outside counsel, expenses, obligations and amounts paid in settlement reasonably incurred by such Indemnitee liabilities of every kind and nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with such actionor arising out of this Agreement (collectively, suit or proceeding"Damages"), including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to unless the extent that, such Indemnitee’s conduct constituted fraud, bad faith aforementioned results from the Escrow Agent's gross negligence or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Membermisconduct which have been finally adjudicated, and (ii) to pay the Escrow Agent on demand the amount of all such Damages. As between the Parties, any Damages will be paid or reimbursed one-half by or in the Buyer and one-half by Sellers' Representative. The costs and expenses of enforcing this right of the Company only if the Managing Member has provided its prior written consentindemnification also will be paid one-half by Buyer and one-half by Sellers' Representative. The indemnification of an Indemnitee foregoing indemnities in this paragraph will survive the resignation or substitution of the type identified in clause (e) Escrow Agent or the termination of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding (a) None of Starboard nor any other provision of this Agreementits affiliates, whether express nor any of their respective members, managers, partners, directors, officers, or impliedemployees or the legal representatives of any of them (each, to the fullest extent permitted by law, no Indemnitee an “Indemnified Person”) shall be liable to Acacia for any acts or omissions relating to, arising out of, or in connection with the Company Services or any Member this Agreement, unless such action or inaction was found, in each case by a final, non-appealable judicial order, to have been made in bad faith or to have constituted fraud, willful misconduct or gross negligence by an Indemnified Person, or for any act or omission in relation relating to the Company performance of the Services of any broker or this Agreement agent of Starboard or any transaction contemplated hereby taken Acacia, provided that such broker or omitted agent was selected, engaged or retained by an Indemnitee unless such Indemnitee’s conduct constituted Starboard in the absence of fraud, bad faith willful misconduct or willful misconduct. gross negligence.
(b) To the fullest extent permitted by law, as Acacia shall indemnify the same exists Indemnified Persons against any loss, cost or hereafter be amended expense suffered or sustained by an Indemnified Person by reason of (but i) any actual or threatened action, proceeding or claim brought by a third party arising out of any acts, omissions or alleged acts or omissions relating to, arising out of, or in connection with the case Services or this Agreement, including, without limitation, any judgment, award, settlement, reasonable attorney’s fees and other costs or expenses incurred, in connection with the defense of any such amendmentactual or threatened action, only proceeding, or claim, unless such acts, omissions or alleged acts or omissions upon which such actual or threatened action, proceeding or claim are based are found by a final, non-appealable judicial order to be made in bad faith or to constitute fraud, willful misconduct or gross negligence by such Indemnified Person, (ii) any subpoena received from a third party by any Indemnified Person relating to the performance of the Services or this Agreement, including any attorney’s fees or other costs or expenses incurred in connection therewith, and (iii) any actual or threatened action, proceeding or claim brought by a third party arising out of any acts or omissions, or alleged acts or omissions, of any broker or agent of any Indemnified Person taken in the performance of the Services, provided that such broker or agent was selected, engaged or retained by the Indemnified Person in the absence of fraud, willful misconduct or gross negligence. Each of Starboard and any Indemnified Person may consult with counsel and accountants in respect of matters relating to the Services and this Agreement, and be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and/or accountants, provided that they shall have been selected in the absence of fraud, willful misconduct or gross negligence.
(c) Acacia shall, in the sole discretion of Starboard, advance to an Indemnified Person reasonable attorney’s fees and other costs and expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim brought by a third party arising out of such performance or non-performance (each, individually, a “Claim”); provided, that Starboard agrees, and each other Indemnified Person shall agree as a condition to any such advance, that in the event it receives any such advance, it shall reimburse Acacia for such fees, costs and expenses to the extent that it shall be determined that it was not entitled to indemnification under this Section 9. Starboard shall assume and control the defense of an Indemnified Person against any Claim brought by a third party; provided that, in respect of any Claim for which Acacia may be required to indemnify such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)Indemnified Person under this Section 9, Starboard (i) shall consult with Acacia with respect to, and Acacia may participate in, the Company defense against such Claim, (ii) shall indemnify any Indemnitee who was or is made or is threatened retain counsel reasonably acceptable to Acacia and (iii) must receive the written consent of Acacia (such consent not to be made unreasonably withheld) before entering into a party binding settlement in respect of such Claim; and provided further that, in the event Acacia provides notice to or is otherwise involved Starboard that it desires to accept a proposed settlement in any threatened, pending or completed respect of such Claim Acacia may enter into such settlement upon receipt of the written consent of Starboard (such consent not to be unreasonably withheld).
(d) As soon as reasonably practicable following its determination that an action, suit proceeding or claim is indemnifiable by Acacia under this Section 9, Starboard agrees to use its best efforts to notify its insurance provider in respect of such action, proceeding or claim and, if and to the extent (brought i) such claim is not covered by Xxxxxx’s Insurance, (ii) Starboard’s indemnifiable loss, cost or expense by reason therefore is reasonably expected to exceed the retention amount under Starboard’s applicable insurance policies, and (iii) Starboard, in its sole discretion, determines that it is commercially reasonable and is in Starboard’s and its clients’ best interests to do so, Starboard agrees to seek insurance coverage for such action, proceeding or claim. For the right avoidance of doubt, any recovery under such Starboard policies shall reduce any loss, cost or expense otherwise indemnifiable by Acacia hereunder but amounts not recovered (including the retention under such policies) shall not affect Acacia’s indemnification obligations hereunder. The parties further agree that an Indemnified Person’s rights to indemnification under this Section 9 shall not be subrogated to any insurance provider or other third party.
(e) Notwithstanding any of the Company or otherwise)foregoing to the contrary, whether civil, criminal, administrative, arbitrative or investigativethe federal securities laws of the United States impose liability under certain circumstances even on persons who act in good faith, and whether formal nothing in this Section 9 constitutes a waiver or informal limitation of any rights Acacia may have under such laws.
(hereinafter a “Proceeding”f) Starboard makes no warranties with respect to any advice provided pursuant to this Agreement or Deliverables (as defined below), including appealsany information, by reason data, opinions or projections therein (except for the use of his or her or its status good faith and reasonable diligence in the preparation thereof), and Acacia acknowledges that such items are subject to error. While Starboard will endeavor to provide high quality Services to Acacia, it does not make any commitment as an Indemnitee or by reason to the outcome of any investments, including that any investments will be completed or that any such investment will generate positive returns. Since the decision to pursue any investment rests solely with Acacia, Starboard shall have no liability or obligation in connection with any action alleged to have been taken or omitted to be taken by Indemnitee Acacia in such capacityreliance on the Services. In addition, for Acacia acknowledges and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided agrees that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or Starboard does not provide coverage (e.g.any tax, a self-insured retention amount under an insurance policy). No legal or accounting advice to Acacia, and Acacia shall obtain any such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteeadvice on its own.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company Partnership or any Member Partner for any act or omission in relation to the Company Partnership or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company Partnership to provide broader indemnification rights than such law permitted the Company Partnership to provide prior to such amendment), the Company Partnership shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company Partnership or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c)12.2.3, the Company Partnership shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing MemberGeneral Partner, and (ii) by or in the right of the Company Partnership only if the Managing Member General Partner has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (ed) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the CompanyPartnership. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company Partnership or any Indemnitee.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding (a) No Director, Stockholder, or officer or other authorized agent of the Company shall be liable to the Company, or any other provision person or entity who has an interest in the Company, for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such person by this Agreement, whether express except that such person shall be liable for any such loss, damage or impliedclaim incurred by reason of such person’s gross negligence or willful misconduct.
(b) In the event that any Stockholder, Special Member, or any of its direct or indirect partners, directors, managing directors, officers, stockholders, employees, agents, affiliates or controlling persons, or any Director or officer of the Company (collectively, the “Indemnified Persons”, and each, an “Indemnified Person”) becomes involved, in any capacity, in any threatened, pending or completed, action, suit proceeding or investigation, in connection with any matter arising out of or relating to the Company’s business or affairs, to the fullest extent permitted by applicable law, no Indemnitee shall any legal and other expenses (including the cost of any investigation and preparation) incurred by such Indemnified Person in connection therewith shall, from time to time, be liable advanced by the Company prior to the Company final disposition of such action, suit, proceeding or any Member for any act or omission in relation to investigation upon receipt by the Company of an undertaking by or this Agreement on behalf of the Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, suit proceeding or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconductinvestigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (collectively, “Costs”), to which such amendmentan Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company’s business or affairs, only except to the extent that any such amendment permits Costs result solely from the Company to provide broader gross negligence or willful misconduct of such Indemnified Person.
(c) If for any reason (other than the gross negligence or willful misconduct of such Indemnified Person) the foregoing indemnification rights than such law permitted the Company to provide prior is unavailable to such amendment)Indemnified Person, or insufficient to hold it harmless, then the Company shall indemnify any Indemnitee who was contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is made or is threatened appropriate to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in reflect not only the right relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company or otherwise)and such Indemnified Person, whether civilas well as any relevant equitable considerations. The reimbursement, criminalindemnity and contribution obligations of the Company under this Section 15 shall be in addition to any liability which the Company may otherwise have to any Indemnified Person and shall be binding upon and inure to the benefit of any successors, administrativeassigns, arbitrative or investigativeheirs and personal representatives of the Company and any Indemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section 15 shall be limited to the Company’s assets, and whether formal no Stockholder shall have any personal liability on account thereof.
(d) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or informal (hereinafter a “Proceeding”)statements presented to the Company by any Person as to matters the Indemnified Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including appealsinformation, by reason opinions, reports or statements as to the value and amount of his the assets or her liabilities of the Company, or its status as an Indemnitee or by reason any other facts pertinent to the existence and amount of any action alleged assets from which distributions to have been taken or omitted to the Stockholder might properly be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses paid.
(including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to e) To the extent that, such Indemnitee’s conduct constituted fraudat law or in equity, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Indemnified Person, an Indemnified Person acting under this Agreement shall not be required liable to indemnify an Indemnitee in connection with the Company or to any action, suit other Person bound by this Agreement for its good faith reliance on the provisions of this Agreement or proceeding (any approval or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized authorization granted by the Managing Member, and (ii) by Company or in the right of the Company only if the Managing Member has provided its prior written consentany other Indemnified Person. The indemnification provisions of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shallthis Agreement, to the extent not that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in conflict with equity, are agreed by the Stockholder and any Special Member to replace such policy, be secondary to other duties and liabilities of such Indemnified Person.
(f) The foregoing provisions shall survive any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit termination of the Company or any Indemniteethis Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (BMO Commercial Mortgage Securities LLC)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement of rights provided pursuant to the Existing Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Alight Inc. / DE)
Exculpation and Indemnification. (a) Notwithstanding any other provision of this AgreementAgreement to the contrary, AHP Servicing shall not be liable to the Investment Manager, 2015A+ or their respective Affiliates for any action or inaction in connection with the performance of the Services unless such action or inaction is determined by a final, non-appealable judgment of a court of competent jurisdiction to constitute gross negligence or willful misconduct on the part of AHP Servicing. It shall be conclusively presumed and established that AHP Servicing shall be entitled to exculpation hereunder if any action is taken, or not taken, by it on the advice of legal counsel or other independent outside consultants. Any exculpation under this section shall apply only to the extent that such exculpation does not violate applicable law.
(b) Notwithstanding any other provision of this Agreement to the contrary, the Investment Manager will indemnify and hold harmless AHP Servicing and its officers, directors, managers, members, stockholders, employees and agents (collectively, “Indemnified Persons”) from and against any and all claims, liabilities, actions, demands, losses, costs, expenses (including attorneys’ fees and other expenses of litigation), damages, penalties or interest incurred in connection with any lawsuit, action, claim, legal proceeding, arbitration, investigation or similar proceeding related to any action or inaction by any of them in connection with the Services (including the settlement of any such lawsuit, action, claim, legal proceeding or arbitration); provided, however, that Indemnified Person is not guilty of gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction. The Investment Manager shall advance amounts and/or pay expenses as incurred in connection with the indemnification obligation herein. In the event this indemnification obligation shall be deemed unenforceable, whether express in whole or impliedin part, such unenforceable portion shall be stricken or modified so as to give effect to this section 8(b) to the fullest extent permitted by law, no Indemnitee .
(c) The foregoing provisions of this section 8 shall be liable to survive the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right termination of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any IndemniteeAgreement.
Appears in 1 contract
Exculpation and Indemnification. 7.1 The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. The Escrow Agent shall not be subject to, nor be under any obligation to ascertain or construe the terms and conditions of any other instrument (including the Purchase Agreement), whether or not now or hereafter deposited with or delivered to the Escrow Agent or referred to in this Agreement, nor shall the Escrow Agent be obligated to inquire as to the form, execution, sufficiency, or validity of any such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same.
7.2 The Escrow Agent shall not be personally liable for any act that it may do or omit to do hereunder in good faith and in the exercise of its own best judgment, except for its own gross negligence or willful misconduct. Any act done or omitted to be done by the Escrow Agent pursuant to the advice of its attorneys shall be deemed conclusively to have been performed or omitted in good faith by the Escrow Agent.
7.3 Buyer and Sellers hereby agree, jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all costs, damages, judgments, reasonable attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liabilities of every kind and nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from or is based upon the Escrow Agent’s gross negligence or willful misconduct. The foregoing indemnities in this paragraph shall survive the resignation or substitution of the Escrow Agent or the termination of this Agreement.
7.4 Notwithstanding any other provision hereof, in the event of any dispute, disagreement or legal action relating to or arising in connection with the escrow, the Escrow Funds, or the performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such controversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the Court in which such interpleader action is filed all documents and funds held in escrow. The Escrow Agent is further authorized to withhold from such deposit for its own account an amount sufficient to compensate itself for all costs, expenses, charges, and reasonable attorneys’ fees incurred by it due to the interpleader action. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 1 contract
Samples: Escrow Agreement (Talx Corp)
Exculpation and Indemnification. Notwithstanding No Manager or Member or other authorized agent of the Company shall be liable to the Company, or any other provision person or entity who has an interest in the Company, for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such person by this Agreement, whether express except that such person shall be liable for any such loss, damage or impliedclaim incurred by reason of such person's willful misfeasance or bad faith. In the event that any Member, or any of its direct or indirect partners, directors, managing directors, officers, stockholders, employees, agents or Affiliates, or any Manager or Officer of the Company (collectively, the "Indemnified Persons"; and each an "Indemnified Person"), becomes involved, in any capacity, in any threatened, pending or completed, action, suit, proceeding or investigation, in connection with any matter arising out of or relating to the Company's business or affairs, to the fullest extent permitted by applicable law, no Indemnitee shall any legal and other expenses (including the cost of any investigation and preparation) incurred by such Indemnified Person in connection therewith shall, from time to time, be liable advanced by the Company prior to the Company final disposition of such action, suit, proceeding or any Member for any act or omission in relation to investigation upon receipt by the Company of an undertaking by or this Agreement on behalf of the Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, suit, proceeding or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconductinvestigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings , costs, expenses and disbursements of any kind or nature whatsoever (collectively, "Costs"), to which such amendmentan Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company's business or affairs, only except to the extent that any such amendment permits Costs result solely from the Company to provide broader willful misfeasance or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance or bad faith of such Indemnified Person) the foregoing indemnification rights than such law permitted the Company to provide prior is unavailable to such amendment)Indemnified Person, or insufficient to hold it harmless, then the Company shall indemnify any Indemnitee who was contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is made or is threatened appropriate to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in reflect not only the right relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company or otherwise)and such Indemnified Person, whether civilas well as any relevant equitable considerations. The reimbursement, criminal, administrative, arbitrative or investigative, indemnity and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right contribution obligations of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee under this Section 13 shall be secondary in addition to any liability which the Company may otherwise have to any Indemnified Person and all indemnification shall be binding upon and inure to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”)any successors, assigns, heirs and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit personal representatives of the Company or and any IndemniteeIndemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section 13 shall be limited to the Company's assets, and no Member shall have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent ------------------------------- permitted by applicable law in effect from time to time, no member of the Board shall be liable for any action or omission of any other member's own part in respect of this Unitholders Plan. The Company hereby agrees to pay all expenses (including, without limitation, legal fees and expenses) incurred by, and satisfy any judgment or lien rendered or levied against, a present or former member of the Board as a result of any proceeding which arises in connection with this Unitholders Plan or the administration thereof; provided, however, -------- ------- that the Board first determines that such director was acting in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Payments authorized under this Unitholders Plan shall include, without limitation, amounts paid and expenses incurred in settling any such proceeding. Termination of any proceeding brought in respect of the settlement or a plea of nolo contendere (or equivalent) will not, of itself, create a presumption that the director did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company. The right to indemnification hereunder shall be a contract right and as such shall run to the benefit of any director who is elected and accepts the position of director of the Company or elects to continue to serve as a director of the Company while this Unitholders Plan is in effect. Any modification or amendment of this Section 16 shall be prospective only and shall not limit the rights of any such director or the obligations of the Company with respect to any claim arising from or related to the services of such director in administering this Unitholders Plan prior to any such modification or amendment. Such right shall include the right to be paid by the Company expenses incurred in investigating and defending any such proceeding in advance of its final disposition to the maximum extent permitted under applicable law, as the same exists or may hereafter be amended amended. If a claim for indemnification or advancement of expenses hereunder is not paid in full by the Company within sixty (but in 60) days after a written claim has been received by such entity, the case of claimant may at any such amendment, only to the extent that such amendment permits time thereafter bring suit against the Company to provide broader indemnification rights than recover the unpaid amount of the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such law permitted the Company to provide prior claim. It shall be a defense to such amendment)action that such indemnification or advancement of costs of defense are not permitted under applicable state law, but the burden of proving such defenses shall be on the Company. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his heirs, executors, administrators, and personal representatives. The rights conferred above shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, bylaw, resolution of stockholders or directors, agreement, or otherwise. As used herein, the Company term "proceeding" shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in mean any threatened, pending pending, or completed action, suit suit, or proceeding (brought in the right of the Company or otherwise)proceeding, whether civil, criminal, administrative, arbitrative arbitrative, or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee appeal in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such an action, suit or proceeding, including appeals; provided and any inquiry or investigation that could lead to such Indemnitee an action, suit, or proceeding. For purposes of this Section 16, the term "director" shall include the estate, executor, administrator, heirs, legatees and assigns of such person. The provisions of this Section 16 are in addition to and shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with limit any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right other rights which a director may have under any provision of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee charter or bylaws of the type identified in clause (e) of the definition of Indemnitee shall be secondary to Company, any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to contract or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteeapplicable law.
Appears in 1 contract
Samples: Unitholders Option Plan and Agreement (Loomis Fargo & Co)
Exculpation and Indemnification. Notwithstanding (a) The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement. In the event that any of the terms and provisions of any other provision agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. Except as set forth herein, the Escrow Agent shall not be subject to, nor be under any obligation to ascertain or construe the terms and conditions of any other instrument, whether express or implied, not now or hereafter deposited with or delivered to the fullest extent permitted by lawEscrow Agent or referred to in this Agreement, no Indemnitee nor shall the Escrow Agent be liable obligated to inquire as to the Company form, execution, sufficiency, or validity of any Member such instrument nor to inquire as to the identity, authority, or rights of the person or persons executing or delivering same.
(b) The Escrow Agent shall not be personally liable for any act that it may do or omission omit to do hereunder in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad good faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but and in the case exercise of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken own best judgment. Any act done or omitted to be taken done by Indemnitee the Escrow Agent pursuant to the advice of its attorneys shall be deemed conclusively to have been performed or omitted in good faith by the Escrow Agent.
(c) In the event the Escrow Agent is notified of any dispute, disagreement or legal action between Parent and Pace and any third party relating to or arising in connection with the escrow, the Escrow Account, or the performance of the Escrow Agent’s duties under this Agreement, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such capacitycontroversy by final appropriate legal proceedings, arbitration, or other means as, in the Escrow Agent’s discretion, it may require. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may, at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized, at its option, to deposit with the Clerk of the Court all documents and funds held in escrow, except all costs, expenses, charges, and reasonable attorneys’ fees incurred by the Escrow Agent due to the interpleader action and which shall be split equally between Parent and Pace. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.
(d) Parent and Pace hereby agree, jointly and severally, to indemnify and hold the Escrow Agent, and its directors, officers, employees, and agents, harmless from and against all loss costs, damages, judgments, attorneys’ fees (whether such attorneys shall be regularly retained or specifically employed), expenses, obligations and liability suffered liabilities of every kind and expenses (including nature which the Escrow Agent, and its directors, officers, employees, and agents, may incur, sustain, or be required to pay in connection with or arising out of this Agreement, unless the aforementioned results from the Escrow Agent’s fraud, gross negligence or willful misconduct, and to pay the Escrow Agent on demand the amount of all such costs, damages, judgments, attorneys’ fees), judgmentsexpenses, fines obligations, and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to liabilities. The costs and expenses of enforcing this right of indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company also shall be required to indemnify an Indemnitee split equally between Parent and Pace. The foregoing indemnities in connection with any action, suit this paragraph shall survive the resignation or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right substitution of the Company only if Escrow Agent or the Managing Member has provided its prior written consent. The indemnification termination of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemniteethis Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Blackboard Inc)
Exculpation and Indemnification. Notwithstanding (a) The Company shall indemnify, defend and hold harmless the Trading Advisor and its affiliates and their respective directors, officers, shareholders, employees and controlling persons (collectively, “Advisor Indemnified Parties”) from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including, without limitation, any investigatory, legal and other provision costs and expenses incurred in connection with, and any amounts paid in, any settlement) (“Losses”) resulting from or relating to a demand, claim, lawsuit, action or proceeding (whether arising between the parties hereto or otherwise and whether initiated by one of this Agreementthe parties hereto or otherwise) relating to or arising out of any of such person’s actions, whether express inactions or implied, capacities relating to the fullest extent permitted by law, no Indemnitee shall be liable to business or activities of the Company or any Member for any act or omission in relation pursuant to the Company or this Agreement or any transaction otherwise relating to the Trading Advisor’s engagement hereunder or the provision of its services as contemplated hereby taken (including, without limitation, Losses relating to any give-up arrangement, including any reverse give-up, entered into by the Company); provided that the conduct of such Advisor Indemnified Party which was the subject of the demand, claim, lawsuit, action or omitted proceeding (i) did not (as determined by an Indemnitee unless a court of competent jurisdiction) constitute gross negligence, willful misconduct or a material breach of this Agreement and (ii) was not done in good faith and in a manner such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter person reasonably believed to be amended (but in the case best interests of any such amendment, only the Company. If and to the extent a court of competent jurisdiction determines that such amendment permits the Company an Advisor Indemnified Party is not entitled to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)indemnity hereunder, the Company shall indemnify be entitled to recover from such Advisor Indemnified Party any Indemnitee who expenses paid by the Company to such Advisor Indemnified Party hereunder in connection therewith. The termination of any demand, claim, lawsuit, action or proceeding by settlement shall not, in itself, create a presumption that the conduct in question was or is made or is threatened not undertaken in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company. In no event shall the Trading Advisor have any liability whatsoever for any actions of the Manager.
(b) The Trading Advisor shall indemnify, defend and hold harmless the Company, the Manager, their respective affiliates and their respective directors, officers, shareholders, employees and controlling persons (collectively, “Manager Indemnified Parties” and together with Advisor Indemnified Parties, the “Indemnified Parties”) from and against any and all Losses resulting from or relating to a demand, claim, lawsuit, action or proceeding (whether arising between the parties hereto or otherwise and whether initiated by one of the parties hereto or otherwise) relating to or arising out of any action or omission of the Trading Advisor or any of its respective officers, directors or employees relating to the business or activities of such person under this Agreement or relating to the management of an account of the Company, provided that the action or omission of such person which was the subject of the demand, claim, lawsuit, action or proceeding constituted gross negligence or willful misconduct or a material breach of this Agreement or was an action or omission taken otherwise than in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company.
(c) The foregoing agreement of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an Indemnified Party.
(d) In the event that a person entitled to indemnification under this Section 13 is made a party to or is otherwise involved in any threatened, pending or completed an action, suit or proceeding (brought alleging both matters for which indemnification may be due hereunder and matters for which indemnification may not be due hereunder, such person shall be indemnified only in the right respect of the Company former matters.
(e) Promptly after receipt of notice of any third party action, arbitration, claim, demand, dispute, investigation, lawsuit or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal other proceeding (hereinafter each a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted the Indemnified Party shall notify the applicable indemnifying party in writing if a claim is to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appealsmade under this Agreement; provided that such Indemnitee the failure to notify the applicable indemnifying party shall not be entitled relieve it from any liability which the applicable indemnifying party may have to indemnification hereunder ifthe Indemnified Party under this Section 13 or from any obligation or liability which it may have to the Indemnified Party otherwise than under this Section 13, but except and only to the extent thatthat the Indemnified Party’s failure to give such notice actually and materially prejudices the rights of the applicable indemnifying party. The applicable indemnifying party shall be entitled to assume the defense of any Proceeding with the assistance of counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall have the right to retain its own counsel, but, subject to Section 13(f) the fees and expenses of such Indemniteecounsel shall be at the Indemnified Party’s own expense.
(f) Until the applicable indemnifying party assumes the defense, or in the event that (i) the applicable indemnifying party fails to diligently conduct constituted fraudthe defense of the Proceeding, bad (ii) the Indemnified Party reasonably determines upon advice of counsel that its interests are or may be adverse, in whole or in part, to the interests of the applicable indemnifying party or that there may be legal defenses available to the Indemnified Party which are or may be different from, in addition to, or inconsistent with the defenses available to the applicable indemnifying party, or (iii) the applicable indemnifying party and the Indemnified Party so agree, the Indemnified Party shall have the right to conduct the defense of such claim in good faith and to compromise and settle the claim with the prior consent of the applicable indemnifying party (such consent not to be unreasonably withheld or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(cdelayed), and the Company applicable indemnifying party will be liable for all costs, expenses, settlement amounts or other Losses actually paid or incurred by the Indemnified Party in connection therewith, subject to and in accordance with Sections 13(a) and (b), as applicable. In such event, the applicable indemnifying party shall promptly advance to any Indemnified Party reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any such Proceeding (it being understood, however, that the applicable indemnifying party shall not be liable for legal or other expenses of more than one separate firm of attorneys for all such persons indemnified hereunder, which firm shall be required designated in writing by the Trading Advisor or the Company, as the case may be). In the event that such an advance is made, the Indemnified Party shall agree (or, if a party hereto, hereby agrees) to indemnify an Indemnitee reimburse the applicable indemnifying party for such fees, costs and expenses to the extent that the court of competent jurisdiction makes the necessary determination that the Indemnified Party was not entitled to indemnification under this Section 13. The foregoing provisions for indemnification shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to a party under this Agreement, at law, in equity or otherwise in connection with any actionbreach of this Agreement.
(g) An indemnifying party shall not settle any Proceeding under this Section 13 without the prior written consent of the Indemnified Party, suit which consent shall not be unreasonably withheld or proceeding delayed.
(or part thereofh) IN NO EVENT WILL AN INDEMNIFIED PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE EVEN IF THE INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(i) commenced by such Indemnitee only if The Trading Advisor represents and warrants that neither it nor any affiliate thereof has entered into, on or prior to the commencement of such actiondate hereof, suit any agreement with any advisory client or proceeding (without duplication) any investment fund managed or part thereof) by such Indemnitee was authorized advised by the Managing MemberTrading Advisor or an affiliate that contains provisions that provide for a standard of care or limitation to any indemnification obligations that are more beneficial, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”)aggregate, and will only be paid to the extent advisory client or the Primary Indemnification is not paid and/or does not provide coverage investment fund than the standard of care or indemnification obligations provided for in this Agreement (e.g., a self-insured retention amount under an insurance policywhere the Trading Advisor is liable for its negligence) (“Indemnity Rights”). No If, after the date hereof, the Trading Advisor enters into an agreement with any advisory client or investment fund managed or advised by the Trading Advisor or an affiliate that provides such Person shall be entitled client or investment fund with more favorable Indemnity Rights, in the aggregate, the Trading Advisor agrees to contribution or indemnification from or subrogation against provide the Company. The indemnification Manager and the Company with notice of any other Indemnitee shallsuch agreement and the terms of such Indemnity Rights, and the Manager and the Company within 30 days’ receipt of such notice, will have the right, but not the obligation, upon written request delivered to the extent not in conflict with Trading Advisor to elect to receive such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit Indemnity Rights (effective as of the Company or any Indemniteedate such Indemnity Rights went into effect pursuant to the applicable agreement).
Appears in 1 contract
Samples: Advisory Agreement (BlackRock Global Horizons I L.P.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee (i) The Advisor shall not be liable to SBFM, the Company Partnership or any Member their respective shareholders, partners, successors or assigns under this Agreement for any act or omission in relation failure to the Company or this Agreement or any transaction contemplated hereby act taken or omitted by an Indemnitee unless in good faith in a manner reasonably believed to be in or not opposed to the best interests of the Partnership if such Indemnitee’s conduct constituted fraudact or failure to act did not constitute negligence, bad faith or willful intentional misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case a material breach of any such amendmentmaterial representations or warranties made by the Advisor in this Agreement, only or a breach of its fiduciary obligations to the extent that such amendment permits Partnership as a commodity trading advisor. In any threatened, pending or completed action, suit, or proceeding to which the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who Advisor was or is made a party or is threatened to be made a party to arising out of or is otherwise involved in any threatened, pending connection with this Agreement or completed action, suit the management of the Partnership's assets by the Advisor or proceeding (brought the offering and sale of units in the right Partnership, SBFM shall, subject to subparagraph (a)(iii) of this Paragraph 6, indemnify and hold harmless the Company or otherwise)Advisor against any loss, whether civilliability, criminaldamage, administrativecost, arbitrative or investigativeexpense (including, without limitation, attorneys' and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ accountants' fees), judgments, fines judgments and amounts paid in settlement actually and reasonably incurred by such Indemnitee it in connection with such action, suit suit, or proceedingproceeding if the Advisor acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Partnership, including appeals; and provided that such Indemnitee shall its conduct did not be entitled constitute negligence, intentional misconduct, a material breach of any material representations or warranties made by the Advisor in this Agreement, or a breach of its fiduciary obligations to indemnification hereunder ifthe Partnership as a commodity trading advisor, but unless and only to the extent that the court or administrative forum in which such action or suit was brought shall determine upon application that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding despite the preceding sentence, except as otherwise provided adjudication of liability but in Section 10.02(c)view of all circumstances of the case, the Company Advisor is fairly and reasonably entitled to indemnity for such expenses which such court or administrative forum shall deem proper; and further provided that no indemnification shall be required to indemnify an Indemnitee in connection with available from the Partnership if such indemnification is prohibited by Section 16 of the Partnership Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that the Advisor did not act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Partnership.
(ii) To the extent that the Advisor has been successful on the merits or part thereof) (i) commenced by such Indemnitee only if the commencement otherwise in defense of such any action, suit or proceeding referred to in subparagraph (or part thereofi) by such Indemnitee was authorized by the Managing Memberabove, and (ii) by or in defense of any claim, issue or matter therein, SBFM shall indemnify it against the right expenses (including, without limitation, attorneys' and accountants' fees) actually and reasonably incurred by it in connection therewith.
(iii) Any indemnification under subparagraph (i) above, unless ordered by a court or administrative forum, shall be made by SBFM only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that such indemnification is proper in the circumstances because the Advisor has met the applicable standard of conduct set forth in subparagraph (i) above. Such independent legal counsel shall be selected by SBFM in a timely manner, subject to the Advisor's approval, which approval shall not be unreasonably withheld. The Advisor will be deemed to have approved SBFM's selection unless the Advisor notifies SBFM in writing, received by SBFM within five days of SBFM's telecopying to the Advisor of the Company only if notice of SBFM's selection, that the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of Advisor does not approve the type identified in clause selection.
(eiv) of In the definition of Indemnitee shall be secondary event the Advisor is made a party to any claim, dispute or litigation or otherwise incurs any loss or expense as a result of, or in connection with, the Partnership's or SBFM's activities or claimed activities unrelated to the Advisor, SBFM shall indemnify, defend and all indemnification to which such Indemnitee is entitled from hold harmless the relevant other Person Advisor against any loss, liability, damage, cost or expense (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemniteeincluding, without limitation, attorneys' and accountants' fees) incurred in connection therewith.
(the “Primary Indemnification”v) As used in this Paragraph 6(a), the terms "Advisor" shall include the Advisor, its principals, officers, directors, stockholders and will only be paid to employees and the extent term "SBFM" shall include the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any IndemniteePartnership.
Appears in 1 contract
Samples: Management Agreement (Smith Barney Diversified Futures Fund L P Ii)
Exculpation and Indemnification. Notwithstanding Should the Branch be served or receive any process, summons, subpoena, order, injunction, execution, distraint, garnishment, xxxx, xxxx or other legal process relating to (or appearing to relate to) the Account, including, but not limited to, process served by the U.S. Secretary of Treasury or Attorney General pursuant to the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, (hereinafter, collectively called "Process"), the Branch may follow (and may rely absolutely on) the advice of its legal counsel as to the appropriate response to such Process, and will have no responsibility or liability for following such advice, even if such advice shall turn out to have been incorrect. The Branch may charge to any Account of the Depositor (whether or not it is the same Account with respect to which the Process relates) any expense, including attorneys' fees, incurred by the Branch in responding to any Process in relation to any Account of the Depositor at the Branch, and the Depositor shall be liable for the payment of such expense. Accordingly, in the event of any such Process, the Branch may, in its sole discretion, freeze all or a portion of each Account of the Depositor to cover the Branch's expected expenses, in which case the Branch may, without any liability whatsoever, return checks drawn on the Account(s) or otherwise refuse to honor any withdrawal therefrom. In the event of any dispute relating to any Account of yours (whether initiated or threatened by you, by the Branch or by any third party), or in the event the Branch receives conflicting instructions, claims or demands relating to such Account, the Branch may take any action which it or its legal counsel considers advisable, including, without limitation "blocking," "freezing," or impounding any funds in such Account, placing such funds in a suspense account, or interpleading such funds; and all resulting costs and expenses of the Branch, including, without limitation, any attorneys' fees and costs incurred prior to or at trial, on appeal or without litigation, shall be reimbursed by you to the Branch upon its demand (and you hereby authorize the Branch to debit any or all of your Accounts in such amounts). The Branch shall not be liable to you for any failure, delay, omission, interruption or error with respect to the Branch's performance of any of its obligations under this Agreement or under any related Account opening documentation or Signature Card, if the same results from any cause beyond the Branch's control, including, without limitation, power failures, equipment malfunctions, suspensions of payment by other financial institutions, labor disputes, bank moratoriums, currency restrictions, trading suspensions, acts of God, wars, civil commotions, acts of terrorism, legal compulsion, negligence of other financial institutions and any other provision actions or restrictions of any governmental, supervisory or monetary authorities or other third parties. The Branch, its head office, its affiliates and their respective directors, officers, employees, attorneys and agents (each of the foregoing, including the Branch, being an "Exculpated Party") shall not at any time incur any liability to you (and you hereby expressly waive and release any and all claims and causes of action which you may at any time have against any Exculpated Party) in connection with any acts, omissions or circumstances at any time or times arising out of or relating to this Agreement, whether express or impliedthe presentation, to payment or dishonor of any item drawn on any Account of yours, or the fullest extent permitted by lawacceptance of any item for deposit in any such Account, no Indemnitee shall be liable to the Company or any Member for Process relating to (or appearing to relate to) you or any act such Account, or omission in relation to the Company any other matter or transaction contemplated by this Agreement (other than any such acts or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith omissions amounting to gross negligence or willful misconductmisconduct on the part of such Exculpated Party). To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment)In addition, the Company Branch, its head office, its affiliates and their respective directors, officers, employees, attorneys and agents (each of the foregoing, including the Branch, being an "Indemnified Party") shall indemnify at all times be indemnified, reimbursed and held harmless by you (and, at the request of the Branch, be defended by you) from and against any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatenedand all claims, pending or completed demands, causes of action, suit or proceeding (brought in the right of the Company or otherwise)liabilities, whether civillosses, criminaldamages, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered costs and expenses (including without limitation any attorneys’ ' fees), judgmentswhether incurred at trial, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit on appeal or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereofwithout litigation) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.may at any
Appears in 1 contract
Samples: Universal Account Agreement
Exculpation and Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, the Escrow Agent shall not be liable for any of the following, except in the event of gross negligence or willful misconduct on the part of the Escrow Agent or in the absence of its good faith: (i) the failure of any of the conditions of this Agreement or damage caused by the exercise of its discretion in any particular manner, or for any reason (including, without limitation, the liquidation of investments of the Proceeds), for any mistake of fact or law, for any error of judgment, or for any action taken or omitted by it, or any action suffered by it to be taken or omitted, or (ii) the failure to ascertain the terms or conditions, or to comply with any of the provisions, of any agreement, contract or other provision document delivered to the Escrow Agent hereunder, or for forgeries or false impersonation.
(b) If any controversy arises among the parties hereto or with any third party with respect to the subject matter of this Agreement, whether express its terms or impliedconditions, the Escrow Agent shall not be required to determine the same or take any action in the premises, but the Escrow Agent may await the settlement of any such controversy by final appropriate legal proceedings, mutual agreement or otherwise as the Escrow Agent may require, notwithstanding anything in this Agreement to the fullest extent permitted contrary, and in such event the Escrow Agent shall not be liable for interest or damages prior to such settlement.
(c) The Escrow Agent's duties hereunder shall be only such as are herein specifically provided, being purely ministerial in nature, and the Escrow Agent shall incur no liability except for willful misconduct or gross negligence so long as the Escrow Agent has acted in good faith. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any Proceeds held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of income incident to any such delay. The Escrow Agent is not a party to, and is not bound by, any agreement or other document out of which this Agreement may arise or any other agreement or other document in connection with the Trust. Except as may be provided by law, no Indemnitee the Escrow Agent shall not be deemed to owe any fiduciary duty to the other parties hereto or to the Subscribers.
(d) The Escrow Agent shall not be required to institute legal proceedings of any kind or to defend any lawsuit brought in connection with the escrowed funds; provided that the Escrow Agent shall cooperate with the Trust with respect to the institution or defense of any such legal proceeding brought by or against the Trust, as the case may be. In the event of its participation in any such legal proceeding, the Escrow Agent shall be reasonably compensated for its services and expenses as provided in Section 9.1(b). The Escrow Agent shall have no responsibility for the genuineness or validity of any document or other items deposited with it, and the Escrow Agent shall be fully protected in acting in accordance with any written instruction given to it hereunder and believed by it to have been signed or given by the proper parties. The Managing Owner and Placement Agent shall provide the Escrow Agent with a list of officers and employees who shall be authorized to deliver instructions hereunder. The Escrow Agent shall not be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby action taken or omitted by an Indemnitee unless the Escrow Agent pursuant to the instructions contained or expressly provided herein, provided that such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended omission was in good faith.
(but e) The Escrow Agent may consult with its legal counsel in the case event of any dispute or question as to the construction of the terms of this Agreement, and the Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel. The Managing Owner shall reimburse the Escrow Agent for reasonable legal expenses actually paid by the Escrow Agent as a result of any such amendmentconsultation with counsel.
(f) In the absence of willful misconduct or gross negligence on the part of the Escrow Agent, the Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, statement, instrument, report or other document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the extent that such amendment permits truth, completeness and acceptability of any information therein contained) which is reasonably believed by the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened Escrow Agent to be made a party genuine and to be signed or is otherwise involved presented by the proper person or persons.
(g) At any time the Escrow Agent may request in any threatened, pending or completed action, suit or proceeding (brought writing an instruction in writing from the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigativeManaging Owner, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or may at its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee own option include in such capacityrequest the course of action it proposes to take and the date on which it proposes to act, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee regarding any matter arising in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee its duties and obligations hereunder. The Escrow Agent shall not be entitled to indemnification hereunder ifliable for acting without the Managing Owner's consent in accordance with such a proposal on or after the date specified therein, but only to provided that the extent specified date shall be at least two (2) business days after the Managing Agent receives the Escrow Agent's request for instructions and its proposed course of action, and provided further that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c)prior to so acting, the Company Escrow Agent has not received the written instructions requested.
(h) The Escrow Agent shall be required to indemnify an Indemnitee indemnified and held harmless by the Trust and the Managing Owner from and against any expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding (involving any claim or part thereof) in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Escrow Agreement, the services of the Escrow Agent hereunder, the Proceeds held by the Escrow Agent hereunder or any income earned from the investment of such Proceeds, except for any such expenses or loss caused by the willful misconduct or gross negligence of the Escrow Agent or in the absence of its good faith.
(i) commenced by such Indemnitee only if The Escrow Agent agrees and acknowledges that in seeking to enforce its rights hereunder against a particular Series, it will look solely to the commencement assets of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by that Series and the Managing MemberOwner, and (ii) by or in not to the right assets of the Company only if Trust generally or any other Series.
(j) The Escrow Agent agrees and consents (the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of "Consent") to look solely to each Series for which brokerage and clearing services are being performed (the type identified in clause "Contracting Series") and assets (ethe "Contracting Series Assets") of the definition of Indemnitee shall be secondary to any Contracting Series and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the CompanyManaging Owner and its assets for payment. The indemnification of any Contracting Series Assets include only those funds and other Indemnitee shallassets that are paid, held or distributed to the extent not in conflict with such policy, be secondary to any Trust on account of and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company Contracting Series, including, without limitation, funds delivered to the Trust for the purchase of interests in a Series. In furtherance of the Consent, the Escrow Agent agrees that (i) any debts, liabilities, obligations, indebtedness, expenses and claims of any nature and of all kinds and descriptions (collectively, "Claims") incurred, contracted for or otherwise existing arising from, related to or in connection with the Trust and its assets and the Contracting Series and the Contracting Series Assets, shall be subject to the following limitations:
(1) Subordination of certain claims and rights.
(i) except as set forth below, the Claims, if any, of the Escrow Agent (the "Subordinated Claims") shall be expressly subordinate and junior in right of payment to any and all other Claims against the Trust and any Series thereof, and any of their respective assets, which may arise as a matter of law or pursuant to any contract; provided, however, that the Escrow Agent's Claims (if any) against the Contracting Series shall not be considered Subordinated Claims with respect to enforcement against and distribution and repayment from the Contracting Series, the Contracting Series Assets and the Managing Owner and its assets; and provided further that the Escrow Agent's valid Claims, if any, against the Contracting Series shall be pari passu and equal in right of repayment and distribution with all other valid Claims against the Contracting Series and (ii) the Escrow Agent will not take, demand or receive from any Series or the Trust or any Indemniteeof their respective assets (other than the Contracting Series, the Contracting Series Assets and the Managing Owner and its assets) any payment for the Subordinated Claims;
(2) the Claims of the Escrow Agent with respect to the Contracting Series shall only be asserted and enforceable against the Contracting Series, the Contracting Series Assets and the Managing Owner and its assets; and such Claims shall not be asserted or enforceable for any reason whatsoever against any other Series, the Trust generally or any of their respective assets;
(3) if the Claims of the Escrow Agent against the Contracting Series or the Trust are secured in whole or in part, the Escrow Agent hereby waives (under section 1111(b) of the Bankruptcy Code (11 U.S.C. S 1111(b)) any right to have any deficiency Claims (which deficiency Claims may arise in the event such security is inadequate to satisfy such Claims) treated as unsecured Claims against the Trust or any Series (other than the Contracting Series), as the case may be;
(4) in furtherance of the foregoing, if and to the extent that the Escrow Agent receives monies in connection with the Subordinated Claims from a Series or the Trust (or their respective assets), other than the Contracting Series, the Contracting Series Assets and the Managing Owner and its assets, the Escrow Agent shall be deemed to hold such monies in trust and shall promptly remit such monies to the Series or the Trust that paid such amounts for distribution by the Series or the Trust in accordance with the terms hereof; and
(5) the foregoing Consent shall apply at all times notwithstanding that the Claims are satisfied, and notwithstanding that the agreements in respect of such Claims are terminated, rescinded or canceled.
(k) The Escrow Agent is authorized, in its sole discretion, to disregard any and all notices or instructions given by any of the parties hereto or by any other person, firm, or corporation, except only such notices or instructions as are hereunder provided for and orders or process of any court entered or issued with or without jurisdiction. Upon the receipt of any such notice, the Escrow Agent will immediately cause a copy of such notice to be sent by facsimile transmission to Xxxxx Xxxxxxxxx, Esq. (or his successor) at (000) 000-0000 or at such other number as is provided in writing to the Escrow Agent in the future. If the Proceeds are, or any part thereof is, at any time attached, garnished, or levied upon under any court order, or if payment, assignment, transfer, conveyance, or delivery of the Proceeds is stayed or enjoined by any court order, or in case any order, judgment, or decree is made or entered by any court affecting the Proceeds or any part thereof, then, and in any such event, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment, or decree that the Escrow Agent is advised is binding upon it, by its legal counsel, and if the Escrow Agent complies with any such order, writ, judgment, or decree it shall not be liable to any of the Parties or to any other person, firm, or corporation by reason of such compliance even though such order, writ, judgment, or decree may be subsequently reversed, modified, annulled, set aside, or vacated.
(l) The Escrow Agent makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by or delivered to it.
(m) The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder.
(n) No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(o) The provisions of Articles VIII and IX shall survive termination of this Agreement and/or the resignation or removal of the Escrow Agent.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding The obligations and duties of the Escrow Agent are confined to those specifically set forth in this Agreement, which obligations and duties shall be deemed purely ministerial in nature. No additional obligations and duties of the Escrow Agent shall be inferred or implied from the terms of any other provision documents or agreements, notwithstanding references herein to other documents or agreements. The terms and provisions of this Agreement shall control the duties of the Escrow Agent in all respects notwithstanding the terms and provisions of any other agreement between any of the Parties that may conflict or are inconsistent with any of the terms and provisions of this Agreement. The Escrow Agent shall not be subject to, or be under any obligation to ascertain or construe the terms and conditions of any other instrument, or to interpret this Agreement in light of any other agreement whether express or implied, not now or hereafter deposited with or delivered to the fullest extent permitted by law, no Indemnitee Escrow Agent or referred to in this Agreement. The Escrow Agent shall not be liable obligated to inquire as to the Company form, execution, sufficiency, or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case validity of any such amendment, only instrument nor to inquire as to the extent that identity, authority, or rights of the person or persons executing or delivering same. The Escrow Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument, or document. The Parties shall provide the Escrow Agent with a list of authorized representatives, initially authorized hereunder as set forth on Exhibit B; as such amendment permits Exhibit B may be amended or supplemented from time to time by delivery of a revised and re- executed Exhibit B to the Company Escrow Agent. The Escrow Agent may, but is not required to, investigate payment instructions, make further inquiries, and, where required, block or reject services due to provide broader indemnification rights than such law permitted domestic or global economic or trade-based sanctions. Notwithstanding the Company to provide prior to such amendment)foregoing sentence, the Company shall indemnify Escrow Agent is authorized to comply with and rely upon any Indemnitee who was notices, instructions or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, other communications believed by reason of his or her or its status as an Indemnitee or by reason of any action alleged it to have been taken sent or omitted given by a Party or by a person or persons authorized by the Parties. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an authorized representative with the following caveat, the Parties agree on a joint basis to be taken by Indemnitee in such capacityindemnify and hold harmless the Escrow Agent against any and all claims, for and against all loss and liability suffered losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees)) (collectively, judgments, fines and amounts paid in settlement reasonably “Losses”) incurred or sustained by such Indemnitee the Escrow Agent as a result of or in connection with such actionthe Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission, suit or proceedingprovided, including appeals; provided however, that such Indemnitee Losses have not arisen from the fraud, gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person shall not be entitled deemed in and of itself to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted constitute fraud, bad faith gross negligence or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 1 contract
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”), including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing MemberOpCo Board, and (ii) by or in the right of the Company only if the Managing Member OpCo Board has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Highland Transcend Partners I Corp.)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (hereinafter a “Proceeding”)informal, including appeals, by reason of his or her or its status as an Indemnitee or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c)) hereof, the Company shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member, Member and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification of an Indemnitee of the type identified in clause (ed) of the definition of Indemnitee shall be secondary to any and all indemnification to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self-insured retention amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee. For the avoidance of doubt, this Agreement shall not affect the indemnification and advancement rights provided pursuant to the Original Agreement in favor of any Person relating to proceedings arising out of actions or omissions occurring in whole or in part prior to the effectiveness of this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Exeter Finance Corp)
