Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows: (a) Except as provided under Section 3(d), the Company shall indemnify Indemnitee in the event that he is or was a party to or is or was threatened to be made a party to, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including any employee benefit plan) in any capacity at the request of the Company, against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding. Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, by the Company shall be deemed service at the request of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwise. (b) Any indemnification under Section 3(a) (unless otherwise ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination (in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification of the Indemnitee is proper. (c) Except as provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making the determination would not permit indemnification, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of the fact that he is or was an officer or director of the Company or any other legal entity controlled, directly or indirectly, by the Company, or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid by the Company in advance of the final disposition of such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwise. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests. (d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction. (e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement. (f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, at the time any Liability or Expense is incurred, and shall inure to the benefit of his heirs, executors and administrators.
Appears in 1 contract
Indemnification and Advancement. (a) The Company hereby agrees to hold harmless and indemnify the Investors, the Investors’ direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as the “Investor Indemnitees”) against any and all expenses (including attorneys’ fees), damages, judgments, fines, amounts paid in settlements, or any other amounts that an Investor Indemnitee incurs as a result of any claim or claims made against it in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Investors’ actions in connection with the purchase by the Investors of the Company’s Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock (a “Financing-Based Claim”); provided, however, that no Investor Indemnitee shall be entitled to be held harmless or indemnified by the Company for acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in willful misconduct or fraud.
(b) The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except as provided under Section 3(d)reimburse, the Company shall indemnify Indemnitee in the event that he is or was a party to or is or was threatened to be made a party topromptly following request therefor, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including any employee benefit plan) in any capacity at the request of the Company, against all Liabilities and Expenses actually and reasonably reasonable expenses incurred by him or on his behalf an Investor Indemnitee in connection with such Proceeding. any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, a Financing-Based Claim, provided, however, that no Investor Indemnitee shall be eligible for indemnification for claims under this Section 3(a)entitled to reimbursement in connection with acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in willful misconduct or fraud.
(c) The Company’s indemnity obligations set forth above are subject to the Investors providing prompt written notice of a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified claim to the fullest extent allowed by Delaware law pursuant Company; provided that the failure to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or provide prompt notice shall not opposed to the best interests of relieve the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawfulof its indemnification obligations hereunder, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company is actually and materially prejudiced by its failure to give such prompt notice. The Company shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, by settlement thereof; provided that the Company shall be deemed service may not discontinue any action or settle any claim in a manner that does not unconditionally release the Investor Indemnitees without the Investors’ prior written approval. The Investor Indemnitees shall, at the request of Company’s expense and reasonable request, cooperate with the Company in any such defense and shall make available to the Company at the Company. The termination of a Proceeding by judgment’s expense all those persons, order, settlement, conviction documents (excluding attorney/client privileged or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwise.
(battorney work product materials) Any indemnification under Section 3(a) (unless otherwise ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination (in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification of the Indemnitee is proper.
(c) Except as provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making the determination would not permit indemnification, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of the fact that he is or was an officer or director of the Company or any other legal entity controlled, directly or indirectly, by the Company, or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the CompanyInvestor Indemnitees may, at the time any Liability or Expense is incurredtheir expense, and shall inure to the benefit of his heirs, executors and administratorsassist in such defense.
Appears in 1 contract
Samples: Investor Rights Agreement (Zonare Medical Systems Inc)
Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except The Company hereby agrees to hold harmless and indemnify the Investors, the Investors’ direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, members, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as provided under Section 3(dthe “Investor Indemnitees”) against any and all expenses (including attorneys’ fees), the Company shall indemnify Indemnitee damages, judgments, fines, amounts paid in the event that he is or was a party to or is or was threatened to be made a party tosettlements, or otherwise involved inany other amounts that an Investor Indemnitee incurs as a result of any claim or claims made against it in connection with any threatened, any Proceeding pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Investors’ actions in connection with the purchase by reason of the fact that he is or was an officer or director Investors of the Company’s Preferred Stock (a “Financing-Based Claim”); provided, or is or was serving the Company or any other legal entity (including any employee benefit plan) in any capacity at the request of the Companyhowever, against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding. that no Investor Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed entitled to be in held harmless or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, indemnified by the Company shall be deemed service at the request for acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in intentional misconduct or in knowing and culpable violation of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwiselaw.
(b) Any indemnification under Section 3(a) (unless otherwise ordered The Company shall reimburse, promptly following request therefor, all reasonable expenses incurred by an Investor Indemnitee in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, a court) Financing-Based Claim, provided, however, that no Investor Indemnitee shall be made by the Company only entitled to reimbursement in connection with acts, conduct or omissions as authorized to which there has been a final adjudication that such Investor Indemnitee engaged in the specific case upon a determination (intentional misconduct, in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification knowing and culpable violation of the Indemnitee is properlaw.
(c) Except as The Company’s indemnity obligations set forth above are subject to the Investors providing prompt written notice of a claim. The Company shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or settlement thereof; provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making Company may not discontinue any action or settle any claim in a manner that does not unconditionally release the determination would not permit indemnificationInvestors without the Investors’ prior written approval. The Investors shall, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of at the fact that he is or was an officer or director of Company’s expense and reasonable request, cooperate with the Company or in any other legal entity controlled, directly or indirectly, by such defense and shall make available to the Company at the Company’s expense all those persons, documents (excluding attorney/client or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid attorney work product materials) reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the CompanyInvestors may, at the time any Liability or Expense is incurredtheir expense, and shall inure to the benefit of his heirs, executors and administratorsassist in such defense.
Appears in 1 contract
Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except The Company hereby agrees to hold harmless and indemnify the Investors, the Investors' direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as provided under Section 3(dthe "Investor Indemnitees") against any and all expenses (including attorneys' fees), the Company shall indemnify Indemnitee damages, judgments, fines, amounts paid in the event that he is or was a party to or is or was threatened to be made a party tosettlements, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including amounts that a Investor Indemnitee incurs as a result of any employee benefit plan) in any capacity at the request of the Company, claim or claims made against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf it in connection with such Proceeding. any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Investors' actions in connection with any transaction undertaken in connection with this Agreement; provided, however, that no Investor Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed entitled to be in held harmless or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, indemnified by the Company shall be deemed service at the request for acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in intentional misconduct or in knowing and culpable violation of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwiselaw.
(b) Any indemnification under Section 3(a) (unless otherwise ordered The Company shall reimburse, promptly following request therefor, all reasonable expenses incurred by a court) Investor Indemnitee in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, the Investors' actions in connection with any transaction undertaken in connection with this Agreement, provided, however, that no Investor Indemnitee shall be made by the Company only entitled to reimbursement in connection with acts, conduct or omissions as authorized to which there has been a final adjudication that such Investor Indemnitee engaged in the specific case upon a determination (intentional misconduct, in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification knowing and culpable violation of the Indemnitee is properlaw.
(c) Except as The Company's indemnity obligations set forth above are subject to the Investors providing prompt written notice of a claim. The Company shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or settlement thereof; provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making Company may not discontinue any action or settle any claim in a manner that does not unconditionally release the determination would not permit indemnificationInvestors without the Investors' prior written approval. The Investors shall, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of at the fact that he is or was an officer or director of Company's expense and reasonable request, cooperate with the Company or in any other legal entity controlled, directly or indirectly, by such defense and shall make available to the Company at the Company's expense all those persons, documents (excluding attorney/client or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid attorney work product materials) reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimitedInvestors may, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of at their expense, assist in such requestsdefense.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect The Company's liability to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Investor Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company section shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect be limited to the Indemnitee without the Indemnitee’s written consent. Neither amount received by the Company nor from such Investor Indemnitee, and the Indemnitee will unreasonably withhold its consent Company's aggregate cumulative liability under this Section shall be limited to any proposed settlement.
(f) The rights the amount received by the Company pursuant to indemnification and advancement of Liabilities and Expenses provided the transaction contemplated by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, at the time any Liability or Expense is incurred, and shall inure to the benefit of his heirs, executors and administratorsAgreement.
Appears in 1 contract
Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except The Company hereby agrees to hold harmless and indemnify the Investors, the Investors' direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as provided under Section 3(dthe "Investor Indemnitees") against any and all expenses (including attorneys' fees), the Company shall indemnify Indemnitee damages, judgments, fines, amounts paid in the event that he is or was a party to or is or was threatened to be made a party tosettlements, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including amounts that an Investor Indemnitee incurs as a result of any employee benefit plan) in any capacity at the request of the Company, claim or claims made against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf it in connection with such Proceeding. any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Investors' actions in connection with the purchase by the Investors of the Series A Stock and Warrants pursuant to the Purchase Agreement (a "Financing-Based Claim"); provided, however, that no Investor Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed entitled to be in held harmless or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, indemnified by the Company shall be deemed service at the request for acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in intentional misconduct or in knowing and culpable violation of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwiselaw.
(b) Any indemnification under Section 3(a) (unless otherwise ordered The Company shall reimburse, promptly following request therefor, all reasonable expenses incurred by an Investor Indemnitee in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, a court) Financing-Based Claim, provided, however, that no Investor Indemnitee shall be made by the Company only entitled to reimbursement in connection with acts, conduct or omissions as authorized to which there has been a final adjudication that such Investor Indemnitee engaged in the specific case upon a determination (intentional misconduct, in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification knowing and culpable violation of the Indemnitee is properlaw.
(c) Except as The Company's indemnity obligations set forth above are subject to the Investors providing prompt written notice of a claim. The Company shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or settlement thereof; provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making Company may not discontinue any action or settle any claim in a manner that does not unconditionally release the determination would not permit indemnificationInvestors without the Investors' prior written approval. The Investors shall, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of at the fact that he is or was an officer or director of Company's expense and reasonable request, cooperate with the Company or in any other legal entity controlled, directly or indirectly, by such defense and shall make available to the Company at the Company's expense all those persons, documents (excluding attorney/client or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid attorney work product materials) reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimitedInvestors may, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of at their expense, assist in such requestsdefense.
(d) Notwithstanding anything The Company's aggregate cumulative liability under this Section shall be limited to the contrary in amount received by the Company pursuant to the transaction contemplated by this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, at the time any Liability or Expense is incurred, and shall inure to the benefit of his heirs, executors and administrators.
Appears in 1 contract
Samples: Investor Rights Agreement (On Stage Entertainment Inc)
Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except The Company hereby agrees to hold harmless and indemnify the Investors, the Investors' direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as provided under Section 3(dthe "Investor Indemnitees") against any and all expenses (including attorneys' fees), the Company shall indemnify Indemnitee damages, judgments, fines, amounts paid in the event that he is or was a party to or is or was threatened to be made a party tosettlements, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including amounts that an Investor Indemnitee incurs as a result of any employee benefit plan) in any capacity at the request of the Company, claim or claims made against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf it in connection with such Proceeding. any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Investors' actions in connection with any transaction undertaken in connection with this Agreement and the Related Agreements executed simultaneously herewith; provided, however, that no Investor Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed entitled to be in held harmless or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, indemnified by the Company shall be deemed service at the request for acts, conduct or omissions as to which there has been a final adjudication that such Investor Indemnitee engaged in intentional misconduct or in knowing and culpable violation of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwiselaw.
(b) Any indemnification under Section 3(a) (unless otherwise ordered The Company shall reimburse, promptly following request therefor, all reasonable expenses incurred by a court) an Investor Indemnitee in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, the Investors' actions in connection with any transaction undertaken in connection with this Agreement and the Related Agreements executed simultaneously herewith; provided, however, that no Investor Indemnitee shall be made by the Company only entitled to reimbursement in connection with acts, conduct or omissions as authorized to which there has been a final adjudication that such Investor Indemnitee engaged in the specific case upon a determination (intentional misconduct, in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification knowing and culpable violation of the Indemnitee is properlaw.
(c) Except as provided under Section 3(d)The Company's indemnity obligations set forth above are subject to the applicable Investors providing prompt written notice of a claim, unless to the extent any delay in providing notice is prejudicial to the Company. The Company shall control the defense of any such action and, at its discretion, may enter into a determination has been made in accordance with Section 4 stipulation of discontinuance or settlement thereof; provided, that the facts then known to those making Company may not discontinue any action or settle any claim in a manner that does not unconditionally release the determination would not permit indemnificationapplicable Investors from any and all liabilities without such Investors' prior written approval. The Investors shall, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of at the fact that he is or was an officer or director of Company's expense and reasonable request, cooperate with the Company or in any other legal entity controlled, directly or indirectly, by such defense and shall make available to the Company at the Company, 's expense all those persons and documents (excluding attorney/client or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid attorney work product materials) reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the CompanyInvestors may, at the time any Liability or Expense is incurredtheir expense, and shall inure to the benefit of his heirs, executors and administratorsassist in such defense.
Appears in 1 contract
Indemnification and Advancement. (a) The Company hereby agrees to indemnify and hold harmless the Investors, the Investors' direct and indirect subsidiaries, affiliated entities and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as the "Purchaser Indemnitees") against any and all expenses (including attorneys' fees), damages, judgments, fines, amounts paid in settlements, or any other amounts that a Purchaser Indemnitee incurs as a result of any claim or claims made against it in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the purchase by the Investors of the Company's Series C Preferred Stock of Series D Preferred Stock (a "Financing-Based Claim"); provided, however, that no Purchaser Indemnitee shall be entitled to be held harmless or indemnified by the Company for acts, conduct or omissions as to which there has been a final adjudication that such Purchaser Indemnitee engaged in gross negligence or willful misconduct.
(b) The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except as provided under Section 3(d)reimburse, the Company shall indemnify Indemnitee in the event that he is or was a party to or is or was threatened to be made a party topromptly following request therefor, or otherwise involved in, any Proceeding by reason of the fact that he is or was an officer or director of the Company, or is or was serving the Company or any other legal entity (including any employee benefit plan) in any capacity at the request of the Company, against all Liabilities and Expenses actually and reasonably reasonable expenses incurred by him or on his behalf a Purchaser Indemnitee in connection with such Proceeding. any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, a Financing-Based Claim, provided, however, that no Purchaser Indemnitee shall be eligible entitled to reimbursement in connection with acts, conduct or omissions as to which there has been a final adjudication that such Purchaser Indemnitee engaged in gross negligence or willful misconduct.
(c) A Purchaser Indemnitee shall give the Company notice in writing as soon as practicable of any claim made against Purchaser Indemnitee for which indemnification for claims will or could be sought under this Section 3(a), subject Agreement; provided that the omission to a determination of such eligibility in accordance with Section 4. Indemnitee provide notice shall be indemnified to not relieve the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that Company from (i) any liability that it may have to Purchaser Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, hereunder except to the extent that indemnification otherwise is expressly prohibited it has been materially prejudiced by applicable law such failure and (including without limitation pursuant ii) any liability that it may have to Section 16(b) indemnity otherwise. The Company shall control the defense of the Securities Exchange Act any such action and, at its discretion, may enter into a stipulation of 1934, as amended). Service as a director, officer, employee discontinuance or agent of settlement thereof; provided that the Company may not discontinue any action or settle any other legal entityclaim in a manner that does not unconditionally release the Investors without the Investors' prior written approval. The Investors shall, partnershipat the Company's expense and reasonable request, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, by cooperate with the Company in any such defense and shall be deemed service make available to the Company at the request of the Company. The termination of a Proceeding by judgment's expense all those persons, order, settlement, conviction documents (excluding attorney/client or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwise.
(battorney work product materials) Any indemnification under Section 3(a) (unless otherwise ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination (in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification of the Indemnitee is proper.
(c) Except as provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making the determination would not permit indemnification, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of the fact that he is or was an officer or director of the Company or any other legal entity controlled, directly or indirectly, by the Company, or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid reasonably required by the Company in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the CompanyInvestors may, at the time any Liability or Expense is incurredtheir expense, and shall inure to the benefit of his heirs, executors and administratorsassist in such defense.
Appears in 1 contract
Indemnification and Advancement. The Company shall indemnify and make advances to Indemnitee as follows:
(a) Except The Company and its Subsidiaries, jointly and severally, hereby agree to hold harmless and indemnify the Investors, the Investors’ direct and indirect subsidiaries, Affiliates and corporations, and each of their partners, officers, directors, employees, shareholders, agents, and representatives (collectively, referred to as provided under Section 3(dthe “Indemnitees”) against any and all expenses (including attorneys’ fees), the Company shall indemnify Indemnitee damages, judgments, fines, amounts paid in the event that he is or was a party to or is or was threatened to be made a party tosettlements, or otherwise involved inany other amounts that an Indemnitee incurs as a result of any claim or claims made against it in connection with any threatened, any Proceeding by reason pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to the Indemnitee’s performance of its obligations or the fact that he is exercise of its rights in accordance with the terms of this Agreement, including actions taken in their capacity as directors or was an officer or director shareholders of the Company; provided, or is or was serving the Company or any other legal entity (including any employee benefit plan) in any capacity at the request of the Companyhowever, against all Liabilities and Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding. that no Indemnitee shall be eligible for indemnification for claims under this Section 3(a), subject to a determination of such eligibility in accordance with Section 4. Indemnitee shall be indemnified to the fullest extent allowed by Delaware law pursuant to a determination in accordance with Section 4 that (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed entitled to be in held harmless or not opposed to the best interests of the Company and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe his conduct was unlawful, except to the extent that indemnification otherwise is expressly prohibited by applicable law (including without limitation pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended). Service as a director, officer, employee or agent of the Company or any other legal entity, partnership, joint venture, trust, employee benefit plan or other enterprise, controlled, directly or indirectly, indemnified by the Company shall be deemed service at the request for acts, conduct or omissions by any Indemnitee involving gross negligence, intentional misconduct or knowing and culpable violation of the Company. The termination of a Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee acted in such a manner as to make him ineligible for indemnification under this Section. Without limiting the foregoing, the Company shall indemnify Indemnitee against all Expenses incurred by him in connection with a Proceeding to which he is or was a party because he is or was a director or officer of the Company to the extent he prevails on the merits or otherwiselaw.
(b) Any indemnification The Company or its Subsidiaries shall reimburse, promptly following request therefor, all reasonable expenses incurred by an Indemnitee in connection with any threatened, pending or completed action, suit, arbitration, investigation or other proceeding arising out of, or relating to, the Indemnitees’ actions in connection with any transaction undertaken in connection with this Agreement, but only to the extent permitted under Section 3(a3.5(a) (unless otherwise ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination (in accordance with Section 4) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 3(a). Such indemnification shall be made within 5 days after the determination (in accordance with Section 4) that indemnification of the Indemnitee is properabove.
(c) Except as The Company’s and its Subsidiaries’ indemnity obligations set forth above are subject to the Indemnitees providing prompt written notice of a claim. The Company and its Subsidiaries shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or settlement thereof; provided under Section 3(d), unless a determination has been made in accordance with Section 4 that the facts then known to those making Company and its Subsidiaries may not discontinue any action or settle any claim in a manner that does not unconditionally release the determination would not permit indemnificationIndemnitee or requires an admission by an Indemnitee or payment by an Indemnitee without such Indemnitee’s prior written approval. The Indemnitees shall, Expenses incurred by Indemnitee in defending a Proceeding to which Indemnitee is or was a party or is or was threatened to be made a party by reason of at the fact that he is or was an officer or director of Company’s and its Subsidiaries’ expense and reasonable request, cooperate with the Company or and its Subsidiaries in any other legal entity controlled, directly or indirectly, by such defense and shall make available to the Company and its Subsidiaries at the Company’s and its Subsidiaries’ expense all those persons, documents (excluding attorney/client or is or was serving the Company or any other legal entity in any capacity at the request of the Company, shall be paid attorney work product materials) reasonably required by the Company and its Subsidiaries in advance the defense of the final disposition of any such Proceeding within 30 days of the receipt by the Company of a written statement by Indemnitee (“Undertaking”) requesting advancement of Expenses and averring that Indemnitee (i) in good faith believes that he has met the standard of conduct required for indemnification set forth in Section 3(a), (ii) has reasonably incurred or reasonably expects to incur such Expenses in defending the Proceeding, and (iii) undertakes to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company under this Agreement or otherwiseaction. The Undertaking shall be an unlimited, unsecured general obligation of Indemnitee and shall be accepted by the Company without reference to Indemnitee’s ability to make repayment. Any subsequent requests for advancement of Expenses shall be pursuant to the Undertaking and shall be paid by the Company within 30 days of receipt of such requests.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to indemnify Indemnitee with respect to any Liability or to pay or advance Expenses in any Proceeding commenced by Indemnitee against the Company, other than a Proceeding commenced to enforce a claim for indemnification or a claim for advancement of Expenses, unless, prior to the initiation of such Proceeding, the initiation of such Proceeding is approved by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if such quorum cannot be obtained, by a majority vote of a committee duly designated by the Board of Directors (in which designation Interested Directors may participate), consisting solely of two or more Disinterested Directors. Notwithstanding the foregoing, the Company shall not be required to advance any expenses to a person against whom the Company directly brings a claim, in a proceeding, alleging that such person has breached his or her duty of loyalty to the Company, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
(e) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
(f) The rights to indemnification and advancement of Liabilities and Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any statute (including without limitation under Section 145 of the Delaware General Corporation Law), articles of incorporation, certificate of incorporation, bylaw, insurance policy, agreement, vote of shareholders or Disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while serving as an officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the Company, and shall continue after Indemnitee has ceased to be a director or officer of the Company, or ceased serving the Company or any other legal entity in any capacity at the request of the Company, and whether or not he is serving as a director or officer of the Company, or serving the Company or any other legal entity in any capacity at the request of the CompanyIndemnitees may, at the time any Liability or Expense is incurredtheir expense, and shall inure to the benefit of his heirs, executors and administratorsassist in such defense.
Appears in 1 contract
