Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee: (a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws of the Company; (b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation or by-laws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company (and the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee); (c) in connection with an action, suit, or proceeding, or part thereof initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or (d) with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of Directors, except as provided in Sections 5, 6, and 7 below.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) If the Indemnitee is made a party or is threatened to be made a party to or is otherwise involved, whether or not a party thereto, in any possible, threatened, pending or completed action, suit, demand, arbitration, or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”) or otherwise incurs, suffers, sustains or becomes subject to any expense, liability, damage, costs, obligations, penalties, claims or losses (including, without limitation, attorneys’ fees and expenses, judgments, fines, Employee Retirement and Income Security Act excise taxes or penalties and amounts paid or to be paid in settlement) (collectively, “Losses”), arising out of, relating to, based upon, in connection with or due to the extent expressly prohibited by applicable lawfact that the Indemnitee is or was serving as a director (including, without limitation, as a member of any committee of the articles of incorporation, or the by-laws Board) and/or officer of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation or by-laws, or agreement any predecessor of the Company or any other company subsidiary of the Company, or other enterprise where the Indemnitee is or was serving at the request of the Company as a director, trustee or officer of another corporation, partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (and such service as a director, committee member, officer or other service at the Indemnitee shall reimburse request of the Company for any amounts paid by being referred to collectively as the Company and subsequently so recovered by the Indemnitee);
(c) in connection with an action, suit, or proceeding, or part thereof initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by “Official Capacity” of the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified Indemnitee shall be indemnified and held harmless by the Board Company to the fullest extent permitted by Maryland law against all Losses incurred, suffered or sustained by the Indemnitee or to which the Indemnitee became subject in connection with such service, including without limitation any such Losses arising, directly or indirectly, out of Directors; or
(d) facts and circumstances in existence prior to the time the Indemnitee began to serve the Company in such Official Capacity, whether or not known to or ascertainable by the Indemnitee at the time such Official Capacity commenced, except with respect to any (i) a Proceeding brought by or in the right of the Company to procure a judgment in its favor (other than as described in Section 1(b)), or (ii) a Proceeding initiated by or on behalf of the Indemnitee against the Indemnitee that is Company (other than as described in Section 2) which Proceeding was not authorized by the Board (for purposes of Directorsthis clause (ii), except a compulsory counterclaim by the Indemnitee against the Company in connection with a Proceeding initiated against the Indemnitee by the Company shall not be considered to be a Proceeding initiated by or on behalf of the Indemnitee). Such indemnification as described in this Section 1(a) shall continue as to the Indemnitee after the Indemnitee has ceased to serve in his or her Official Capacity as set forth above, and shall inure to the benefit of the Indemnitee’s heirs, executors, administrators, conservators and guardians.
(b) In the case of a Proceeding by or in the right of the Company or any subsidiary of the Company to procure a judgment in its favor, the Indemnitee shall be entitled to indemnification as provided in Sections 5Section 1, 6except in respect of any proceeding in which the Indemnitee shall have been adjudged liable to the Company by a court having jurisdiction over the matter. The Indemnitee shall be entitled to indemnification for any judgment, fines or amounts paid in settlement to the Company in connection with such Proceeding.
(c) The rights conferred upon the Indemnitee by this Agreement shall include the right to be paid or reimbursed by the Company for any Losses from time to time incurred, suffered or sustained by the Indemnitee or to which the Indemnitee became subject in connection with any such service, including, without limitation, reasonable expenses actually incurred in connection with any such Proceeding or other action in advance of its final disposition (hereinafter an “Advancement of Expenses”); provided, however, that such Advancement of Expense shall be made (without further inquiry by the Company or the Board) upon and only upon delivery to the Company of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized by the MGCL has been met and (ii) a written undertaking by or on behalf of the Indemnitee to repay any Advancement of Expenses if it shall ultimately be determined by a final, nonappealable judicial decision that the Indemnitee has not met the applicable standard of conduct necessary for indemnification under the MGCL. Any such undertaking shall be an unlimited general obligation of the Indemnitee but need not be secured and shall be accepted by the Company without reference to financial ability to make repayment.
(d) If the Indemnitee is successful, on the merits or otherwise, in defending one or more but less than all claims, issues or matters in such Proceeding (including dismissal without prejudice of certain claims), the Company shall indemnify the Indemnitee against any Losses including, without limitation, reasonable expenses actually incurred by the Indemnitee or on the Indemnitee’s behalf in defending each such successfully resolved, claim, issue, or matter.
(e) Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, by reason of such Indemnitee’s Official Capacity is, or is threatened to become, a witness for any reason in any Proceeding in which such Indemnitee is not a party, such Indemnitee shall be indemnified against any Losses (and be entitled to Advancement of Expenses pursuant to clause 1(c) hereof) including, without limitation, reasonable expenses actually incurred by or on behalf of such Indemnitee in connection therewith.
(f) Without diminishing or impairing the indemnification obligations of the Company hereunder or under Maryland law or the charter of by-laws of the Company, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any Losses with respect to which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), to the maximum extent permitted by Maryland law now or hereafter in force the Company shall contribute to the amount of such Losses actually incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and 7 belowIndemnitee, on the other hand, from the transaction from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or amounts paid in settlement, as well as any other equitable considerations. The relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary, and the degree to which their conduct is active or passive.
Appears in 1 contract
Samples: Indemnification Agreement (Deerfield Capital Corp.)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) In the event that the Indemnitee is made a party or is threatened to the extent expressly prohibited be made a party to or is otherwise involved, whether or not a party thereto, in any action, suit, demand, arbitration or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”) or otherwise incurs or suffers any expense, liability, damage, costs, obligations, penalties or loss (including, without limitation, attorneys’ fees, judgments, fines and amounts paid or to be paid in settlement) (collectively, “Losses”), by applicable law, the articles of incorporation, or the by-laws reason of the Company;
(b) for and to the extent fact that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision had agreed to serve on the Board of the articles of incorporation or by-laws, or agreement Directors of the Company or any other company is or other enterprise where was a director, officer, employee or agent of the Indemnitee Company, or is or was serving at the request of the Company (as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, or otherwise relating to the establishment, actions, decisions, approvals or functioning of the Board of Directors of the Company or any of its subsidiaries, whether or not the basis of such proceeding is the Indemnitee’s alleged action or omission in an official capacity while serving as a director, officer, employee or agent of the Company, in any capacity as a nominee to, or possible member of, the Board of Directors of the Company or in any other capacity in connection with Indemnitee’s agreement to serve on and service on the Board of Directors of the Company, the Indemnitee shall reimburse be indemnified and held harmless by the Company to the fullest extent permitted by Applicable Law against all Losses incurred or suffered by the Indemnitee in connection therewith and such indemnification shall inure to the benefit of the Indemnitee’s heirs, executors, administrators, conservators and guardians.
(b) The right to indemnification conferred hereunder shall include the right to be paid or reimbursed by the Company for any amounts paid by the Company and subsequently so recovered Losses from time to time incurred or suffered by the Indemnitee, including, without limitation, the reasonable expenses incurred in defending or otherwise being involved in any such proceeding or other action in advance of its final disposition (hereinafter an “advancement of expenses”);
; provided, however, except as provided in paragraph (c) of this Section 1, the Indemnitee shall not be entitled to be paid or reimbursed for any Losses or expenses in connection with an action, suit, proceedings initiated or proceeding, or part thereof initiated brought voluntarily by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or unless such proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of DirectorsDirectors of the Company. The Indemnitee hereby agrees to repay all amounts so advanced if it shall ultimately be determined by a final judicial decision of a court having jurisdiction pursuant to Section 10 hereof from which there is no further right to appeal or as to which all right to appeal has expired (hereinafter a “final adjudication”), except that the Indemnitee is not entitled to be indemnified for such Losses.
(c) If a claim under this Section 1 is not paid in full by the Company within 30 days after a written claim therefor by the Indemnitee (together with such invoices or other supporting documentation as may be reasonably requested by the Company) has been received by the Company in the case of advancement of expenses or 30 days after a written claim therefor by the Indemnitee (together with such invoices or other supporting documentation as may be reasonably requested by the Company) has been received by the Company in the case of any other right to indemnification hereunder, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. In any such suit or in a suit brought by the Company seeking to recover an advancement of expenses, the Indemnitee also shall be entitled to be paid the expense of prosecuting or defending such suit if the Indemnitee is successful in such claim or defense. In any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that there has been a final adjudication of a court having jurisdiction pursuant to Section 10 hereof that such indemnification is not provided for pursuant to this Section 1 and is not permitted by the organizational documents of the Company or by Applicable Law. Neither the failure of the Company to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in Sections 5the circumstances because the Indemnitee has met any applicable standard of conduct set forth under Applicable Law, 6nor an actual determination by the Company that the Indemnitee has not met any such applicable standard of conduct, and 7 belowshall be a defense to the suit or create a presumption that the Indemnitee has not met any applicable standard of conduct.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the The Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCLBVI Act, the common law of the British Virgin Islands, and the M&A, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, include but shall not be limited to, to those rights hereinafter set forth in this Agreementforth, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, law or the by-laws of the CompanyM&A;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation or by-lawsM&A, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company (and the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);
(c) in connection with an action, suit, or proceeding, or part thereof voluntarily initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding or arbitration pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of DirectorsDirectors of the Company or the Board of Directors otherwise determines that indemnification or advancement of Expenses is appropriate; or
(d) with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of DirectorsDirectors of the Company, except as provided in Sections 5, 6, and 7 below.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding(a) The Corporation, to the fullest extent authorized permitted by the IBCLlaw, as the same exists or may hereafter be amended, all on the terms shall indemnify and conditions set forth in this Agreement. Without diminishing the scope advance expenses to any director of the rights provided Corporation and may indemnify and advance expenses to any other Person, in each case, made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by this Section, the rights reason of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall includefact that he or she is or was a director, but shall not be limited toofficer, those rights set forth in this Agreement, except that no indemnification employee or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws agent of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy Corporation or under a valid and enforceable indemnity clause, provision any predecessor of the articles of incorporation Corporation or by-laws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Third Amended and Restated Certificate, the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in connection with an action, suitlaw, or proceedingthe adoption of any other provision of this Third Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or part thereof initiated by the Indemnitee (including claims and counterclaimsrelated to, whether any act or omission occurring prior to such counterclaims are asserted by (i) the Indemnitee, repeal or (ii) the Company in an action, suit, amendment or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board adoption of Directors; orsuch inconsistent provision.
(d) with respect to any Proceeding brought by or in This Section 8.2 shall not limit the right of the Company against Corporation, to the Indemnitee that is extent and in the manner authorized or permitted by the Board of Directorslaw, except as provided in Sections 5, 6, to indemnify and 7 belowto advance expenses to persons other than indemnitees.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement5, the Company shall indemnify and hold harmless agrees that (i) if the IndemniteeAgent is made a party, or is threatened to be made a party, to any action, suit or proceeding, whether civil, criminal, arbitrative, administrative or investigative, pursuant to any alternative dispute mechanism or other, and shall pay whether made pursuant to the Indemnitee in advance federal, state or other laws, by reason of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceedingfact that he or she is or was an officer, to the fullest extent authorized by the IBCLemployee, as the same exists director, agent, fiduciary or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation or by-laws, or agreement representative of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company (and the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);
(c) in connection as an officer, director, employee, director, partner, agent, fiduciary or representative of another trust, corporation, limited liability company, partnership, joint venture or other entity or enterprise, including service with an action, suit, or proceeding, or part thereof initiated by the Indemnitee (including claims and counterclaimsrespect to employee benefit plans, whether or not the basis of such counterclaims are asserted by Proceeding is the Agent’s alleged action in an official capacity while serving as an officer, director, employee, fiduciary, partner, agent or representative (i) the Indemniteea “Proceeding”), or (ii) if any claim, demand, request, threat, discovery request, inquiry, investigation, or request for testimony or information is made, or threatened to be made, (whether or not relating to any event or occurrence prior to the date hereof) that arises out of or relates to the Agent’s service in any of the foregoing capacities (a “Claim”, and together with a “Proceeding”, an “Indemnifiable Action”), then the Agent shall promptly be indemnified and held harmless by the Company to the fullest extent legally permitted or authorized by the Certificate of Incorporation or By-laws of the Company, against any and all costs, expenses, liabilities and losses (including, without limitation, reasonable and documented attorneys’ fees, experts’ fees, witness fees, court costs, retainers, transcript fees, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement and all other costs, expenses and other amounts paid or payable in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in (including on appeal), any Indemnifiable Action) paid or payable by the Agent in connection therewith (“Expenses”). In connection with any such Indemnifiable Action, the Company shall, at the Agent’s option, pay all Expenses on behalf of the Agent directly to any service provider or vendor within five (5) business days of receipt by the Company of a proper invoice reasonably detailing the Expenses. If the Agent does not choose to have the Company pay Expenses directly to such service providers or vendors consistent with the foregoing, then in connection with any such Indemnifiable Action, the Company shall either advance to the Agent funds in an amount sufficient to pay all Expenses, reimburse the Agent for all Expenses actually paid by the Agent, or advance to the Agent all Expenses payable by the Agent in each case within five (5) business days after receipt by the Company from the Agent of a written request for such payment, advancement or reimbursement, provided that the Agent shall repay, without interest, any amounts actually advanced to the Agent that, at the final disposition of the Indemnifiable Action to which the advance related, were in excess of amounts paid or payable by the Agent in respect of Expenses related to, arising out of or resulting from such Indemnifiable Action. In connection with any such payment, advance or reimbursement, the Agent undertakes and agrees to repay any amounts paid, advanced or reimbursed by the Company in respect of Expenses relating to, arising out of or resulting from any Indemnifiable Action in respect of which it shall have been determined, following the final disposition of such Indemnifiable Action and in accordance with Section 5, that the Agent is not entitled to indemnification hereunder; it being understood and agreed that the foregoing shall satisfy any requirement that the Agent provide the Company with an actionundertaking to repay any advancement of Expenses prior to the payment, suit, advancement or proceeding initiated reimbursement thereof by the Indemnitee)Company . Notwithstanding the foregoing, except a judicial proceeding pursuant the Agent will not be indemnified against Claims against the Agent arising due to violations of Section 11 16 under the Securities Exchange Act of 1934. Indemnification shall be made from the legally available assets of the Company and no shareholder of the Company shall be personally liable to enforce rights the Agent under this Agreement, unless . If the action, suit, Agent is entitled under any provision of this Agreement to indemnification by the Company for some or proceeding, or part a portion of any Expenses but not for all of the total amount thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought by or in the right of the Company against shall nevertheless indemnify the Indemnitee that Agent for the portion thereof to which the Agent is authorized by the Board of Directors, except as provided in Sections 5, 6, and 7 belowentitled.
Appears in 1 contract
Samples: Indemnification Agreement (Plum Creek Timber Co Inc)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to (a) To the fullest extent authorized permitted by the IBCLapplicable law, as the same exists or may hereafter be amended, all on the terms Corporation shall indemnify and conditions set forth hold harmless each Person who is or was 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, whether civil, criminal, administrative or investigative (for purposes of this Agreement. Without diminishing the scope Section 9.2, a “Proceeding”) by reason of the rights provided by this Section, the rights fact that he or she is or was a director or officer of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall includeCorporation or, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification while a director or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws officer of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clauseCorporation, provision of the articles of incorporation or by-laws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company Corporation as a director, member, manager, officer, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, member, manager, officer, employee or agent, or in any other capacity acting on behalf or at the request of the Corporation while serving as a director, member, manager, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such Proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an Indemnitee in defending or otherwise participating in any Proceeding in advance of its final disposition. Notwithstanding the foregoing, to the extent required 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, to repay all amounts so advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Section 9.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 9.2 shall reimburse be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the Company benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 9.2(a), except for any amounts paid Proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Company Board.
(b) The rights to indemnification and subsequently so recovered advancement of expenses conferred on any Indemnitee by this Section 9.2 shall not be exclusive of any other rights that any Indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Indemnitee);Bylaws, insurance, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 9.2 by the stockholders of the Corporation or by changes in connection with an action, suitlaw, or proceedingthe adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 9.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or part thereof initiated by the Indemnitee (including claims and counterclaimsrelated to, whether any act or omission occurring prior to such counterclaims are asserted by (i) the Indemnitee, repeal or (ii) the Company in an action, suit, amendment or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board adoption of Directors; orsuch inconsistent provision.
(d) with respect to any Proceeding brought by or in This Section 9.2 shall not limit the right of the Company against Corporation, to the Indemnitee that is extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to Persons other than Indemnitees.
(e) The Corporation shall have the power to purchase and maintain insurance (or be named insured on the insurance policy of an affiliate), on behalf of the Indemnitees and such other Persons as the Board shall determine, in its sole discretion, against any liability that may be asserted against, or expense that may be incurred by, such Person in connection with such Person’s activities on behalf of Directorsthe Corporation, except as provided in Sections 5, 6, regardless of whether the Corporation would have the power to indemnify such Person against such liability under the provisions of this Amended and 7 belowRestated Certificate.
Appears in 1 contract
Samples: Business Combination Agreement (CF Acquisition Corp. VI)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the The Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amendedDGCL, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, include but shall not be limited to, to those rights hereinafter set forth in this Agreementforth, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, law or the by-laws Certificate of Incorporation or Bylaws of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles certificate of incorporation or by-lawsbylaws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company (and the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);
(c) in connection with an action, suit, or proceeding, or part thereof voluntarily initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding or arbitration pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of DirectorsDirectors of the Company or the Board of Directors otherwise determines that indemnification or advancement of Expenses is appropriate; orand
(d) with respect to advancement of Expenses only, with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of DirectorsDirectors of the Company; provided, except as that the rights of the Indemnitee to indemnification provided with respect to any Proceeding brought by or in Sections 5, 6, and 7 belowthe right of the Company against the Indemnitee that is authorized by the Board of Directors of the Company shall be subject to a determination by the Board of Directors of the Company that the applicable standard of conduct has been met by the Indemnitee.
Appears in 1 contract
Samples: Indemnification Agreement (F45 Training Holdings Inc.)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company The Corporation shall indemnify and hold harmless the Indemniteeadvance expenses to, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceedinghold harmless, to the fullest extent authorized permitted by the IBCL, applicable law as the same it presently exists or may hereafter be amended, all on the terms and conditions set forth any person (an “Indemnitee”) who was or is made, or is threatened to be made, a party or is otherwise involved in this Agreement. Without diminishing the scope any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the rights provided by this Sectionfact that he or she, or a person for whom he or she is the rights legal representative, is or was a director or an officer of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall includeCorporation or, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification while a director or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws an officer of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clauseCorporation, provision of the articles of incorporation or by-laws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company Corporation as a director, officer, employee, member, trustee or agent of another corporation or of a partnership, joint venture, trust, nonprofit entity or other enterprise (including, but not limited to, service with respect to employee benefit plans), against all liability and the Indemnitee shall reimburse the Company for any loss suffered (including, but not limited to, expenses (including, but not limited to, attorneys’ fees and expenses), judgments, fines and amounts paid in settlement and reasonably incurred by the Company and subsequently so recovered by the such Indemnitee);
(c) . Notwithstanding the preceding sentence, the Corporation shall be required to indemnify, or advance expenses to, an Indemnitee in connection with an action, suit, or proceeding, a Proceeding (or part thereof initiated thereof) commenced by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of DirectorsDirectors of the Corporation or the Proceeding (or part thereof) relates to the enforcement of the Corporation’s obligations under this Article VI(b). Any indemnitee may have certain rights to indemnification, except as advancement of expenses and/or insurance provided in Sections 5by one or more stockholders of the Corporation and their respective affiliates (other than the Corporation) (the “Secondary Indemnitor”). The Corporation hereby agrees (I) that it is the indemnitor of first resort (i.e., 6its obligations to indemnitee are primary and any obligation of any Secondary Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by indemnitee are secondary), and 7 below.(ii) that it shall be required to advance the full amount of
Appears in 1 contract
Samples: Agreement of Contribution and Sale (Change Healthcare Holdings, Inc.)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to (a) To the fullest extent authorized permitted by the IBCLapplicable law, as the same exists or may hereafter be amended, all on the terms Corporation shall indemnify, defend, advance expenses and conditions set forth hold harmless each person (as used in this Agreement. Without diminishing Restated Certificate, “person” means any individual, corporation, partnership, unincorporated association or other entity) who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit, investigation, arbitration or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the scope right of the rights provided Corporation to procure a judgment in its favor (each, a “proceeding”) by this Section, the rights reason of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except fact that no indemnification he or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, she is or the by-laws was a director or officer of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under Corporation or, while a valid and collectible insurance policy director or under a valid and enforceable indemnity clause, provision officer of the articles of incorporation or by-lawsCorporation, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees and disbursements, judgments, fines, ERISA excise taxes, damages, claims and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an Indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition (including by making any payment directly to the applicable third parties if requested by the indemnitee); provided, however, that, to the extent required 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, to repay all amounts so advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall reimburse be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the Company benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for any amounts paid proceedings to enforce rights to indemnification and advancement of expenses (which are, for the avoidance of doubt, indemnified proceedings and expenses), the Corporation shall indemnify and advance expenses to an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Company Board.
(b) The rights to indemnification and subsequently so recovered advancement of expenses conferred on any Indemnitee by this Section 8.2 shall not be exclusive of any other rights that any Indemnitee may have or hereafter acquire under law, this Restated Certificate, the Indemnitee);Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 or by changes in connection with an action, suitlaw, or proceedingthe adoption of any other provision of this Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or part thereof initiated related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision. If the DGCL is amended after the effectiveness of this Restated Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Indemnitee (including claims and counterclaimsDGCL, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; oras so amended.
(d) with respect Any reference to an officer of the Corporation in this Article VIII shall be deemed to refer exclusively to the [Chief Executive Officer, President, Chief Financial Officer, General Counsel and Secretary of the Corporation] appointed pursuant to Article of the Bylaws, and to any Proceeding brought Vice President, Assistant Secretary, Assistant Treasurer or other officer of the Corporation appointed by the Board pursuant to Article of the Bylaws, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors or equivalent governing body of such other entity pursuant to the certificate of incorporation and bylaws or equivalent organizational documents of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, but not an officer thereof as described in the preceding sentence, has been given or has used the title of “Vice President” or any other title that could be construed to suggest or imply that such person is or may be such an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or being deemed to be, such an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for purposes of this Article VIII.
(e) This Section 8.2 shall not limit the right of the Company against Corporation, to the Indemnitee that is extent and in the manner authorized or permitted by the Board of Directorslaw, except as provided in Sections 5, 6, to indemnify and 7 belowto advance expenses to persons other than Indemnitees.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject 1.1. Without derogating from the Company’s right to Section 9 indemnify the Indemnitee retroactively pursuant to its Articles of this AgreementAssociation, the Company shall hereby agrees and undertakes to indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited permitted by applicable law, for any liability and expense specified in Sections 1.1.1 and 1.1.2 below (the articles of incorporation“Indemnifiable Expenses”) that may be imposed on Indemnitee due to an act performed or failure to act by him in his capacity as an Office Holder, as such term is defined in the Companies Law – 5759–1999 (the “Companies Law”), or the by-laws of the Company;
(b) for and due to any event or occurrence related to the extent fact that payment Indemnitee is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clausewas an Office Holder, provision of the articles of incorporation agent or by-laws, or agreement fiduciary of the Company or any other company subsidiary of the Company or other enterprise where the any entity in which Indemnitee is serves as an Office Holder or was serving an agent or fiduciary at the request of the Company (and or any subsidiary of the Company, except in the event that the Indemnitee is separately covered and/or indemnified under such duty, either prior to or after the date hereof (the following, as set forth in schedule A, shall reimburse be hereinafter referred to as “Indemnifiable Events”):
1.1.1. A financial liability imposed on Indemnitee in favor of a third party in a judgment (which third parties include, without limitation and to the fullest extent permitted by applicable law, any governmental entity), including a compromise judgment given as a result of a settlement or an arbitrator’s award which has been confirmed by a court (the “Judgment Liability”); and
1.1.2. Reasonable litigation Expenses (to be paid either to the Indemnitee or if the Company for any amounts paid so determines, at its sole discretion, directly to the Indemnitee’s legal and other advisors) expended by an Indemnitee or which were imposed on an Indemnitee by a court in proceedings instituted against him by the Company and subsequently so recovered by the Indemnitee);
(c) in connection with an action, suit, or proceeding, or part thereof initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought by or in its name or by any other person or in relation to a criminal charge from which he was acquitted or in a criminal proceeding in which he was convicted of a criminal offense that does not require proof of criminal intent (the right of the Company against the Indemnitee that is authorized by the Board of Directors, except as provided in Sections 5, 6, and 7 below“Litigation Expenses”).
Appears in 1 contract
Samples: Director and Officer Indemnity Agreement (Eltek LTD)
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the The Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such ProceedingIndemnitee, to the fullest extent authorized permitted by the IBCL, as the same exists or may hereafter be amended, all NRS in effect on the terms and conditions set forth date of this Agreement or as such law may from time to time be amended (but, in this Agreementthe case of any such amendment, only to the extent that such amendment permits the Company to provide broader rights than said law permitted the Company to provide prior to such amendment). Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, include but shall not be limited to, to those rights hereinafter set forth in this Agreementforth, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, NRS or the byArticles and By-laws of the Companylaws;
(b) for and to the extent that which payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation Articles or byBy-laws, or agreement of the Company or the organizational documents or agreement of any other company or other enterprise organization where the Indemnitee is or was serving at the request of the Company (and Company, except in respect of any indemnity exceeding the Indemnitee shall reimburse payment under such insurance, indemnity clause, provision of the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);applicable organizational documents or agreement; or
(c) in connection with an action, suit, or proceeding, or part thereof initiated by the Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding or arbitration pursuant to Section 11 10 to enforce rights under this Agreement, unless the action, suit, or proceeding, proceeding (or part thereof, ) was authorized or ratified by the Board of DirectorsDirectors of the Company; or
(d) with respect to any Proceeding brought by or in the right on behalf of the Company against the Indemnitee that is authorized by the Board of DirectorsDirectors of the Company, except as provided in Sections 54, 6, 5 and 7 6 below.
Appears in 1 contract
Indemnification and Advancement of Expenses. Subject to Section 9 of this Agreement, the (a) The Company shall indemnify and hold harmless the Indemnitee, and shall pay any Person made or threatened to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited made a party to, those rights set forth in this Agreementor called as a witness or asked to submit information in, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited by applicable law, the articles of incorporation, or the by-laws of the Company;
(b) for and to the extent that payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the articles of incorporation or by-laws, or agreement of the Company or any other company or other enterprise where the Indemnitee is or was serving at the request of the Company (and the Indemnitee shall reimburse the Company for any amounts paid by the Company and subsequently so recovered by the Indemnitee);
(c) in connection with an action, suit, action or proceeding, whether civil, criminal, judicial, legislative, administrative or part thereof initiated by the Indemnitee (investigative, including claims and counterclaims, whether such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought action by or in the right of the Company to procure a judgment in its favor, and including an action by or in the right of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise of any type or kind, domestic or foreign, which any Member or officer of the Company is or was serving in any capacity at the request of the Company, by reason of the fact that he, his testator or intestate, is or was a Member, employee, representative or agent of the Company, or is or was serving such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys fees, incurred in connection with such action or proceeding, or in connection with an appeal therein; provided, however, that no such indemnification shall be made to such Member, employee, representative or agent if a judgment or other final adjudication adverse to the Indemnitee Member, employee, representative or agent establishes that (i) the acts of such Person were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) such Person personally gained in fact a financial profit or other advantage to which such Person was not legally entitled; and provided further that no such indemnification shall be required with respect to any settlement or other nonadjudicated disposition of any threatened or pending action or proceeding unless the Company has given its prior consent to such settlement or other disposition.
(b) The Company may indemnify any other Person to whom the Company is authorized permitted to provide indemnification or the advancement of expenses by applicable law, whether pursuant to rights granted pursuant to, or provided by, the LLC Law or other rights created by (i) a resolution of Members, or (ii) an agreement providing for such indemnification, it being expressly intended that this Section 11.3 authorizes the creation of other rights in any such manner.
(c) The Company shall upon request advance to any Person entitled to indemnification under this Section 11.3, or promptly reimburse any such Person for, all expenses, including attorneys, fees, reasonably incurred in defending any action or proceeding in advance of the final disposition of such action or proceeding upon receipt of a written undertaking by or on behalf of such Person to repay such amount as, and to the extent that, the Person receiving such advancement is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced or reimbursed by the Board Company exceed the indemnification to which such Person is entitled; provided, however, that such Person shall cooperate in good faith with any request by the Company that common counsel be utilized by the parties to an action or proceeding who are similarly situated unless to do so would be inappropriate due to actual or potential differing interests between or among such parties.
(d) The indemnification of Directorsany Person provided by this Section 11.3 shall continue after such Person has ceased to be a Member, except employee, representative or agent of the Company and shall inure to the benefit of such Person's heirs, executors, administrators and legal representatives.
(e) For purposes of this Section 11.3, the term "Company" shall include any legal successor to the Company, including any company which acquires all or substantially all of the assets of the Company in one or more transactions.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 11.3 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any statute, rule, regulation, by-law, agreement, vote of Members or otherwise, both as provided to action in Sections 5an official capacity and as to action in another capacity while holding such office.
(g) GN shall indemnify and hold harmless VQT and VQT's Affiliates licensees, 6representatives, successors and assigns, and 7 belowthe employees, officers, directors, agents and representatives of each of them (collectively, the "VQT Indemnitees") from and against any and all losses, damages, costs (including, without limitation, reasonable legal fees and expenses), liabilities or judgments sustained, paid or incurred by the VQT Indemnitees, as a result of or in connection with any breach or alleged breach of any of GN's representations and warranties set forth herein; provided, however, that GN shall have the right to control the defense of any claim or proceeding.
(h) VQT shall indemnify and hold harmless GN and GN's Affiliates licensees, representatives, successors and assigns, and the employees, officers, directors, agents and representatives of each of them (collectively, the "GN Indemnitees") from and against any and all losses, damages, costs (including, without limitation, reasonable legal fees and expenses), liabilities or judgments sustained, paid or incurred by the GN Indemnitees, as a result of or in connection with (i) any breach or alleged breach of any of VQT's representations, warranties and agreements set forth herein and/or (ii) the formulation of the Products and/or the distribution of the Products by Windmill.
Appears in 1 contract
Samples: Operating Agreement (George Foreman Enterprises Inc)
Indemnification and Advancement of Expenses. Subject 1.1. The Company hereby undertakes to Section 9 of this Agreement, the Company shall indemnify and hold harmless the Indemnitee, and shall pay to the Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by the Indemnitee in defending any such Proceeding, to the fullest extent authorized by the IBCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of the Indemnitee to indemnification and advancement of Expenses provided hereunder shall include, but shall not be limited to, those rights set forth in this Agreement, except that no indemnification or advancement of Expenses shall be paid to the Indemnitee:
(a) to the extent expressly prohibited permitted by applicable law, for any liability and expense specified in Sections 1.1.1 and 1.1.2 below that may be imposed on Indemnitee due to an act performed or failure to act by him in his capacity as an Office Holder, as such term is defined in the articles of incorporationCompanies Law – 5759–1999 (the “Companies Law”), or the by-laws of the Company;
(b) for and due to any event or occurrence related to the extent fact that payment Indemnitee is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clausewas an Office Holder or an employee, provision of the articles of incorporation agent or by-laws, or agreement fiduciary of the Company or any other company subsidiary of the Company or other enterprise where the any entity in which Indemnitee is serves as an Office Holder or was serving an employee, agent or fiduciary at the request of the Company or any subsidiary of the Company either prior to or after the date hereof (the following shall be hereinafter referred to as “Indemnifiable Events”):
1.1.1. A financial liability imposed on Indemnitee in favor of a third party in a judgment (which third parties include, without limitation and to the fullest extent permitted by applicable law, any governmental entity), including a compromise judgment given as a result of a settlement or an arbitrator’s award which has been confirmed by a court; and
1.1.2. reasonable Expenses (to be paid either to the Indemnitee shall reimburse or if the Indemnitee so determines, at his sole discretion, directly to the Indemnitee’s legal and other advisors) expended by an Indemnitee or which were imposed on an Indemnitee by a court in proceedings instituted against him by the Company or in its name or by any other person or in relation to a criminal charge from which he was acquitted or in a criminal proceeding in which he was convicted of a criminal offense that does not require proof of criminal intent. For the purpose of this Agreement, “Expenses” shall include attorneys’ fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any claim relating to any Indemnifiable Event.
1.2. Notwithstanding anything herein to the contrary, the indemnification undertaking given by the Company hereunder shall be only with respect to events described in Exhibit A hereto. The maximum amount payable by the Company under this Agreement for any amounts each event described in Exhibit A shall be as set forth in Exhibit A. The indemnification provided herein shall not be subject to the limitations imposed by this Section 1.2 and Exhibit A if and to the extent such limits are no longer required by law.
1.3. If so requested by Indemnitee, and subject to the Company’s reimbursement right set forth in Section 6 below, the Company shall advance an amount (or amounts) estimated by it to cover Indemnitee’s reasonable Expenses with respect to which Indemnitee is entitled to be indemnified under Section 1.1 above. The advances to be made hereunder shall be paid by the Company to Indemnitee as soon as practicable but in any event no later than fifteen (15) days after written demand by such Indemnitee therefor to the Company.
1.4. The Company’s obligation to indemnify Indemnitee and subsequently so recovered advance expenses in accordance with this Agreement shall be for such period (the “Indemnification Period”) as Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding or any inquiry or investigation, whether civil, criminal or investigative, arising out of the Indemnitee’s service in the positions described in Section 1.1 above, whether or not Indemnitee is still serving in such positions.
1.5. The Company undertakes that as long as it may be obligated to provide indemnification and advance Expenses under this Agreement, the Company will purchase and maintain in effect directors and officers liability insurance providing coverage in amounts as determined by the Board of Directors of the Company in its sole discretion; provided, that, the Company shall have no obligation to obtain or maintain directors and officers insurance if the Company determines in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the amount of coverage provided, or the coverage provided by such insurance is so limited by exclusions that it provides an insufficient benefit. The Company undertakes to give prompt written notice of the commencement of any claim hereunder to the insurers in accordance with the procedures set forth in each of the policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee);
(c) in connection with an , all amounts payable as a result of such action, suit, or proceeding, inquiry or part thereof initiated by investigation in accordance with the Indemnitee (including claims and counterclaims, whether terms of such counterclaims are asserted by (i) the Indemnitee, or (ii) the Company in an action, suit, or proceeding initiated by the Indemnitee), except a judicial proceeding pursuant to Section 11 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the Board of Directors; or
(d) with respect to any Proceeding brought by or in the right of the Company against the Indemnitee that is authorized by the Board of Directors, except as provided in Sections 5, 6, and 7 belowpolicies.
Appears in 1 contract
