Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor. (b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal. (c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence. (d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person. (e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 4 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement (BioFuel Energy Corp.)
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia Texas statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 2 contracts
Samples: Company Agreement (BioFuel Energy Corp.), Company Agreement (BioFuel Energy Corp.)
Indemnification and Exculpation. (a) The Company shall Sublessee agrees to indemnify (i) its Membersand hold Sublessor and Master Lessor, Managers and Officers to the fullest extent permitted by lawtheir respective partners, members, shareholders, officers, directors and employees, harmless from and against any and all liabilities, losses, costs, expenses, fines, penalties and claims of any kind whatsoever, including, without limitation, any loss or damage to property of Master Lessor, Sublessor, Sublessee or any other person or any claim or liability arising from any injury to or death of any person, which arises from or is in any way related to: (a) the advance Subleased Premises; (b) the use and occupancy of expenses the Subleased Premises by Sublessee and Sublessee’s employees, contractors, agents, invitees and licensees or any other party; (c) any activity, work or other thing done, permitted or suffered by Sublessee in or about the building in which the Subleased Premises exists, including, but not limited to, the handling of hazardous materials; (d) any breach or default by Sublessee of any of Sublessee’s obligations under this Sublease or the procedures and to the fullest extent permitted by lawMaster Lease; or (e) any acts, omissions or negligence of Sublessee, Sublessee’s agents, employees, invitees, licensees or contractors. Sublessee shall, at Sublessee’s expense, and (ii) by counsel satisfactory to Sublessor and Master Lessor, defend Sublessor and Master Lessor in any action or proceeding arising from any such claim and shall indemnify Sublessor and Master Lessor against all costs, attorneys’ fees, expert witness fees and any other employees and agents of expenses incurred in such action or proceeding. This Sublease is made on the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification express condition that Sublessor shall not be exclusive liable for, or suffer loss or incur any liability by reason of, injury to or death of any other rights person or persons or damage to which those seeking indemnification or loss of use of property, from whatever cause in any way connected with the condition or use of the Subleased Premises or personal property or fixtures therein or thereon or connected with activities of Sublessee or any of Sublessee’s employees, agents, invitees, contractors or licensees, including, without limitation, any and all liability for injury to or death of, or damage to or loss of the use of the property of, Sublessee or any of Sublessee’s employees, agents, invitees, contractors or licensees, except to the extent caused solely by the gross negligence or willful misconduct of Sublessor. Without limiting the generality of the foregoing, Sublessor shall not be liable for injury or damage that may be entitled. The Board sustained by the person or property of Managers Sublessee, Sublessee’s employees, invitees or customers or any other person in or about the Subleased Premises, that is caused by or results from fire, steam, electricity, gas, water, rain, that may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend leak or flow from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of into any part of the provisions thereof shall limit Subleased Premises, or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, whether such damage or injury results from conditions arising upon the Company and no MemberSubleased Premises, Manager from the roof, street or Officer subsurface or from any other sources. Sublessor further shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall not be personally liable for injury to the Company Sublessee’s business or any Members for money damages. No amendment loss of this Agreement income therefrom or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to damages arising from any act or omission occurring prior to such amendment of any other tenant, occupant or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor user of the building in which the Subleased Premises exists. In the event that any of their respective officersthe foregoing events or situations occurs, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable Sublessee agrees to look solely to Master Lessor for recovery pursuant to the Company or any other Person who has an interest in the Company terms and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf provisions of the Company Master Lease and in a manner reasonably believed not to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this AgreementSublessor. The provisions of this Agreement to Section 26 shall survive the extent that they restrict the duties and liabilities expiration or earlier termination of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Personthis Sublease.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 2 contracts
Indemnification and Exculpation. (a) The Company From and after the Closing Date, Buyer shall, and shall indemnify cause each Business Entity to, indemnify, defend and hold harmless, to the fullest extent permitted under Law, the Organizational Documents of the applicable Business Entity and indemnification agreements, in each case, in effect as of the date of this Agreement, the individuals who on or prior to the Closing Date were directors or officers of such Business Entity (i) its Memberscollectively, Managers the “D&O Indemnitees”), as applicable, with respect to all acts or omissions by them in their capacities as such or taken at the request of such Business Entity at any time prior to the Closing Date. Buyer agrees that all rights of the D&O Indemnitees to indemnification and Officers exculpation from Liabilities for acts or omissions occurring at or prior to the Closing Date pursuant to any Organizational Documents, indemnification agreements or other arrangements of each Business Entity shall survive the Closing Date and shall continue in full force and effect in accordance with their terms, and otherwise to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by lawLaw. The foregoing Such rights of indemnification shall not be exclusive of amended, or otherwise modified in any other manner that would adversely affect the rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to D&O Indemnitees, unless such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereformodification is required by applicable Law.
(b) To the fullest extent permitted by Georgia statutory If any Action is asserted or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder made with respect to which a D&O Indemnitee may seek or obtain indemnification hereunder, any act determination required to be made with respect to whether a D&O Indemnitee’s conduct complies with the standards set forth under Law, any Organizational Documents or omission occurring prior any indemnification agreements or arrangements of the Business Entities shall be made by independent legal counsel selected by such D&O Indemnitee and reasonably acceptable to such amendment or repealBuyer.
(c) No MemberBuyer and each D&O Indemnitee shall reasonably cooperate, Manager or Officer, nor their Affiliates, nor any of and cause their respective officersAffiliates to cooperate, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason defense of any act such Action and shall provide access to properties and individuals as reasonably requested and furnish or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed cause to be within the scope of the authority conferred on furnished records, information and testimony, and attend such Covered Person by this Agreementconferences, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such lossdiscovery proceedings, damage hearings, trials or claim incurred by reason of such Covered Person’s willful misconductappeals, bad faith or gross negligenceas may be reasonably requested in connection therewith.
(d) To If Buyer or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the extent continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer shall assume all of the obligations thereof set forth in this Section 5.17.
(e) Buyer understands and agrees that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto prior to the Company or Closing, the Business Entities intend to any Memberobtain a prepaid six-year “tail” insurance policy that provides coverage for events occurring prior to the Closing Date, on terms no less favorable to the insured than the coverage provided under the Business Entities’ current directors’ and officers’ insurance policy, for the Persons who are covered by such policy on the date of this Agreement; provided, however, that the Business Entities’ shall not pay an aggregate premium in excess of 200% of the aggregate amount per annum paid for such coverage in the last full fiscal year prior to the date hereof, which amount Parent has disclosed to Buyer prior to the date hereof, but may purchase such coverage as may be obtained for such 200% amount. Parent agrees that, prior to the Business Entities purchasing any such Covered Person acting policy, the Business Entities shall afford Buyer the opportunity to purchase a substitute policy which (i) has an effective term of six years from the Closing Date, (ii) covers those Persons who are currently covered by the Business Entities’ current directors’ and officers’ insurance policy for actions and omissions occurring on or prior to the Closing Date, and (iii) contains terms and conditions that are no less favorable to the insured than those of the Business Entities’ current directors’ and officers’ insurance policy; provided, however, that in satisfying its obligation under this Agreement Section 5.1(e) Buyer shall not be liable obligated to pay an aggregate premium per annum in excess of 200% of the aggregate amount paid for such coverage in the last full fiscal year prior to the Company date hereof, but shall be obligated to purchase such coverage as may be obtained for such 200% amount.
(f) The obligations of Buyer under this Section 5.17 shall not be terminated or modified in such a manner as to adversely affect any Member for its good faith reliance on D&O Indemnitee to whom this Section 5.17 applies without the provisions consent of this Agreementthe affected D&O Indemnitee. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision Section 5.17 (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, are intended to be for the Member shall be entitled to consider only such interests and factors as it desires, including its own interestsbenefit of, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Memberbe enforceable by, or each D&O Indemnitee and such D&O Indemnitee’s heirs and Representatives and (ii) are in its “good faith” or under another express standardaddition to, the Member shall act under such express standard and shall not be subject to in substitution for, any other rights to indemnification or different standards imposed contribution that any such Person may have by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity Contract, at Law or otherwise.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Indemnification and Exculpation. (a) The Company shall indemnify the Manager and its Affiliates (and their respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders) (collectively, “Indemnified Manager Persons”) in respect of, and hold it harmless from and against, any and all Losses suffered, incurred or sustained by any Indemnified Manager Person or to which it becomes subject, however so arising whether under tort, contract, negligence, strict liability or otherwise, to the extent resulting from, arising out of, or relating to or in connection with (i) its Membersany breach of any covenant, Managers obligation or agreement on the part of any member of the Company Group contained in this Agreement, (ii) the nonfulfillment of or failure to perform any covenant or agreement on the part of any member of the Company Group contained in this Agreement, and Officers (iii) the Services or this Agreement, except to the fullest extent permitted that any Losses have been caused by lawthe bad faith, gross negligence, willful misconduct or actual fraud of Manager or any of its Affiliates or representatives, and for any Losses suffered, incurred, or sustained by an Indemnified Manager Person as a result of any uncured, intentional, and material breach by the Manager of any of its covenants or agreements contained in this Agreement. The Company will reimburse the Indemnified Manager Persons for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses of one counsel for all such Indemnified Manager Persons (and any required local counsel) and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Manager Persons are entitled to indemnification under the terms of this Section 5.8(a), or any action or proceeding arising therefrom, whether or not such Indemnified Manager Person is a party thereto.
(b) In no event shall either Party or its respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders have any liability for any Losses under any provision of this Agreement for any punitive, consequential, special or indirect damages, whether based on statute, contract, tort or otherwise, and whether or not arising from the other Party’s sole, joint, or concurrent negligence, strict liability, criminal liability or other fault other than punitive, consequential, special or indirect damages suffered by a Person other than an Indemnified Manager Person for which the Company has responsibility pursuant to this Article V.
(c) The Parties acknowledge and agree that the indemnification provisions of this Article V and any other rights and remedies available to a Party under this Agreement are cumulative and in addition to, not exclusive of or in substitution for, any implied rights or remedies provided by law or equity for the breach or nonfulfillment of any covenant or agreement on the part of the Company and Manager under this Agreement.
(d) Notwithstanding Manager’s agreement to perform, or cause to be performed, the Services in accordance with the provisions hereof, the Company acknowledges, on its own behalf and on behalf of each member of the Company Group, that performance by Manager or any other Person of Services pursuant to this Agreement will not subject Manager or any other Indemnified Manager Persons to any Losses whatsoever, except to the extent resulting from, arising out of or relating to or in connection with Manager’s bad faith, gross negligence, willful misconduct, or actual fraud in performing its obligations under this Agreement; provided, however, that (i) Manager’s and each of its Affiliates (and their respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders) aggregate liability, collectively, as a result of such bad faith, gross negligence, willful misconduct or actual fraud will be limited to an amount equal to the G&A Costs paid by the Company to Manager over the 24 month period preceding the date of the action or inaction that gave rise to such liability and (ii) SN shall be liable for the Losses incurred by the Company described in the preceding clause (i); provided, further, that any damages payable pursuant to this Section 5.8(d) shall be subject to the terms and conditions of the Xxxxxxx Credit Agreement; provided, further, however, that if any of such Losses are covered by any insurance policy of the Company, the aggregate liability of such Indemnified Manager Person with respect to such Losses shall be reduced by the amount recovered by the Company under such policy in respect of such Losses.
(e) Whenever any claim arises for indemnification hereunder, the indemnified Person shall promptly notify the indemnifying Party of the claim and, when known, the facts constituting the basis for such claim, except that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a Third Party, except as otherwise expressly provided in this Section 5.8, such notice shall specify, if known, the amount or an estimate of the amount of the Losses asserted by such Third Party.
(f) In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a Person who is not a Party, the indemnifying Party, may, upon notice to the indemnified Person, assume the defense of any such claim or legal proceeding. Except with the written consent of the indemnified Person, the indemnifying Party shall not consent to the entry of any judgment or settlement arising from any such claim or legal proceedings which, in each case, provides for any non-monetary relief or does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified Person of a release from all Losses in respect thereof, unless in the latter case the indemnifying Party has actually paid to the indemnified Person the full amount of such judgment or settlement. Any indemnified Person shall be entitled to participate in (but not control) the defense of any such claim or litigation resulting therefrom. If the indemnifying Party does not elect to control the litigation as provided above, the indemnified Person may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation, after giving notice of the advance of expenses under the procedures and same to the fullest extent permitted by lawindemnifying Party, on such terms as such indemnified Person may deem appropriate, and the indemnifying Party shall promptly reimburse the indemnified Person (iisubject to Section 5.8(b)) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time as such resolutions Losses are incurred. All indemnification hereunder shall be effected by payment of cash or contracts implementing such provisions delivery of a certified or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any official bank check in the amount of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereforLosses.
(bg) To the fullest extent permitted Except as provided above, all claims for Losses brought by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Third Parties against Company or any Members for money damages. No amendment Subsidiary (x) arising out of this Agreement or repeal of in any of their respective provisions shall limit or eliminate the limitation on liability provided way relating to the Membersprovision of Services hereunder and (y) not discharged by insurance required hereunder, Managers and Officers hereunder shall only be settled or, with respect to any act or omission occurring prior to such amendment or repeal.
(c) No MemberManager’s concurrence, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound defended by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent thatManager, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered PersonCompany’s expense.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 2 contracts
Samples: Interim Investors Agreement, Interim Investors Agreement (Sanchez Energy Corp)
Indemnification and Exculpation. (a) The Company shall (the "INDEMNIFYING PARTY") agrees to indemnify and hold harmless the Placement Agents, their affiliates and their parents and their affiliates, and the respective directors, officers, agents and employees of the Placement Agents, their affiliates and their parents and their affiliates, and each person, if any, who controls either of the Placement Agents within the meaning of the Act or the Exchange Act from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (or actions or proceedings in respect thereof) to which the Placement Agents or such entity or person may become subject related to or arising out of (i) its Members, Managers and Officers to the fullest extent permitted by law, Placement Agents' engagement hereunder including, without limitation, the advance use or content of expenses under the procedures and to Registration Statement, any preliminary prospectus or the fullest extent permitted by lawProspectus, and or any amendment or supplement thereto, or (ii) other employees and agents the activities of the Company to in connection with the Offerings, and will reimburse the Placement Agents and each such extent entity or person for all reasonable legal and other expenses as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adoptincurred in connection with investigating, approve and amend from time to time such resolutions preparing, pursuing or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for defending any such loss, damage claim, damage, judgment, assessment, cost, liability, action, investigation or claim incurred by reason of proceeding whether or not in connection with pending or threatened litigation in which either the Placement Agents or any such Covered Person’s willful misconductentity or person is a party; provided, bad faith or gross negligence.
(d) To the extent thathowever, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to that the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable in the case of clause (i) for losses, claims, damages, judgments, assessments, costs, liabilities or expenses that (x) a court of competent jurisdiction shall have found in a final judgment which is no longer subject to appeal or further review to have arisen solely from the gross negligence or willful misconduct of either of the Placement Agents or (y) are caused by any untrue statement or omission or alleged untrue statement or omission based upon information relating to the Placement Agents furnished in writing to the Company by the Placement Agents specifically for use in the Registration Statement, any preliminary prospectus or any Prospectus or any amendment or supplement thereto. In case any proceeding shall be instituted involving any person in respect to whom indemnity may be sought, such person (the "INDEMNIFIED PARTY") shall promptly notify the indemnifying party in writing; provided, however, that failure to so notify the indemnifying party shall not relieve the indemnifying party from any liability the indemnifying party may have on account of this indemnity or otherwise, except to the extent the indemnifying party shall have been materially prejudiced by such failure. The indemnifying party, upon the request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may reasonably designate in such proceedings and shall pay as incurred the fees and expenses of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense, except that the indemnifying party shall pay as incurred the reasonable fees and expenses of counsel retained by the indemnified party in the event that (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any Member such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of all such parties by the same counsel would constitute a real or perceived conflict of interest in the reasonable opinion of the indemnified party, due to actual or potential differing interests between them or (iii) the indemnifying party has failed to assume the defense and employ counsel. The indemnifying party shall not be liable for any settlement of any proceeding effected without its good faith reliance written consent (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party to the extent set forth in this Agreement. The indemnifying party will not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action or proceeding in respect of which indemnification or contribution may be sought hereunder unless such settlement, compromise, consent or termination includes an unconditional release of the indemnified party from any and all liability with respect to such action or proceeding. In the event a claim for indemnification as described herein is unavailable or insufficient, then the Company shall contribute to the aggregate losses, claims, damages or liabilities to which the Placement Agents, their affiliates and their parents and their affiliates, and the respective directors, officers, agents, employees or controlling persons may be subject in such amount as is appropriate to reflect the relative benefits received by the Company on the provisions one hand and the party seeking contribution on the other and the relative fault of this Agreementthe Company on the one hand and the party seeking contribution on the other, as well as any relevant equitable contributions; provided, however, that in no event shall the Company contribute less than the amount necessary to ensure that the Placement Agents and such entities and persons, in the aggregate, are not liable for any losses, claims, damages, judgments, assessments, costs and other liabilities in excess of the amount of the Placement Fee actually received by the Placement Agents hereunder. The relative benefits received by the Company and on the one hand and the Placement Agents on the other shall be deemed to be in the same proportion as the total net proceeds from the Concurrent Offering (before deducting expenses) received by the Company bear to the Placement Fee paid to the Placement Agents by the Company. The provisions of this Agreement relating to reimbursement, indemnification and contribution shall survive termination, modification or completion of the extent that they restrict engagement of the duties Placement Agents and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty binding upon any successors or obligation to give any consideration to any interest assigns of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwiseCompany.
Appears in 2 contracts
Samples: Placement Agency Agreement (Florida Panthers Holdings Inc), Placement Agency Agreement (Florida Panthers Holdings Inc)
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliatesofficer of the Company, nor any of their respective directors, officers, directorsstockholders, shareholders, partners, employees, representatives or agents and employees (each, a “Covered Person” and collectively, the “Covered Indemnified Persons”) ), shall be liable liable, in damages or otherwise, to the Company or any other Person who has an interest in the Company and is bound by this Agreement Person, for any loss, damage or claim incurred by reason of any act or omission performed or omitted by any of them with respect to this Agreement or the Company’s business and affairs, unless such Covered Person in good faith act or omission constituted gross negligence, willful misconduct or the willful and material breach of an express term of this Agreement on behalf the part of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Indemnified Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement Agreement, to the extent that they expand, restrict or eliminate the duties and liabilities of a Covered any Person otherwise existing at law or in equity, are agreed by the Members and Managers pursuant hereto to replace to that extent such other duties and liabilities of such Covered Personliabilities.
(eii) Whenever The Company, to the fullest extent permitted by law, shall indemnify and hold harmless all Indemnified Persons from and against any and all losses, claims, damages, liabilities, expenses (including reasonable legal fees and expenses), judgments, fines, settlements, claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, arising out of or in connection with, any action taken or omitted by any Indemnified Person with respect to this Agreement a Member or the Company’s business and affairs (“Losses”). An Indemnified Person’s expenses paid or incurred in defending against any Losses shall be reimbursed as paid or incurred; provided, however, that any such reimbursement of expenses shall be conditioned upon the Company’s receipt of an undertaking by or on behalf of the Indemnified Person to repay promptly such reimbursed amount if it should ultimately be determined that such Indemnified Person was not entitled to be indemnified by the Company hereunder. This Section 20(b)(ii) shall not apply with respect to any Indemnified Person for that portion of any Loss that results from the gross negligence or willful misconduct of such Indemnified Person or the willful and material breach of an express term of this Agreement by such Indemnified Person. Any payments made to or on behalf of an Indemnified Person who is permitted or required later determined not to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors payments shall be refunded to the Company promptly following such determination. A determination as it desiresto whether any Person is entitled to be indemnified by the Company hereunder shall be made (unless determined by a court) (A) by a majority vote of disinterested Managers, including its own interestseven though less than a quorum, and shall have (B) if there are no duty disinterested Managers, or obligation the disinterested Managers so direct, by independent legal counsel in a written opinion to give any consideration to any interest of or factors affecting the Company or (C) by the Class A Members.
(iii) Indemnification under this Section 20(b) shall continue as to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder and shall inure to the benefit of the heirs, successors, assigns and administrators of any other Member, or (iiPerson entitled to indemnification hereunder. In the event that the indemnification provided for in this Section 20(b) in its “good faith” or under another express standardis unavailable to a Person described herein for any reason whatsoever, the Member Company, in lieu of indemnifying such Person, shall act contribute to the Loss incurred by such Person in such proportion as is deemed fair and reasonable in light of all the circumstances in order to reflect (A) the relative benefits received by the Company and such Person as a result of the event(s) and/or transaction(s) giving rise to such Loss and/or (B) the relative faults of the Company and the Person to be indemnified in connection with such event(s) and/or transaction(s). The rights granted pursuant to this Section 20(b) shall be deemed contract rights, and no amendment, modification or deletion of this Section 20(b) shall have the effect of limiting or denying any such rights with respect to actions taken or proceedings, appeals, inquiries or investigations arising prior to any amendment, modification or deletion. Any indemnification or right to contribution under this Section 20(b) shall be satisfied solely out of the assets of the Company and, to the extent the Company lacks sufficient funds or is otherwise unable to fully indemnify or make the contribution described herein to all Persons making claims pursuant to this Section 20(b), then any indemnification and contribution payments shall be made on a pro rata basis based on the amount of the Loss incurred by such express standard and Persons. The Members shall not be subject to personal liability by reason of these indemnification and contribution provisions.
(iv) The rights to indemnification and contribution and the advancement and payment of expenses conferred in this Section 20(b) shall not be exclusive of any other right that a Person entitled thereto pursuant to this Section 20(b) may have or different standards imposed hereafter acquire under any law (common or statutory), contract or provision of this Agreement.
(v) The Company may purchase and maintain insurance, to the extent and in such amounts as the Board of Managers shall deem reasonable, on behalf of the Indemnified Persons and such other Persons as the Board of Managers shall determine, against any liability that may be asserted against or expenses that may be incurred by such Indemnified Persons or other Persons in connection with the activities of the Company, regardless of whether the Company would have the power to protect such Indemnified Persons or other Persons against such liability under the provisions of this Agreement Section 20(b).
(vi) If this Section 20(b) or any other agreement contemplated herein portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless hold harmless each Person provided for pursuant to this Section 20(b) as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any such proceeding, appeal, inquiry or investigation to the fullest extent permitted by relevant the provisions of law or in equity or otherwisethis Section 20(b) that shall not have been invalidated and by applicable law.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (U S Energy Systems Inc)
Indemnification and Exculpation. (a) The Company shall (in such capacity, the “Indemnifying Party”) agrees to indemnify and hold harmless the Investors, and each of their Affiliates and each of the Investors’ and their Affiliates’ respective officers, directors, partners, shareholders, members, trustees, controlling persons, employees, agents, advisors, attorneys and representatives (ieach, an “Indemnified Party”) its Membersfrom and against any and all losses, Managers claims, damages, liabilities, and Officers to the fullest extent permitted by law, costs and expenses (including, without limitation, reasonable and documented fees and disbursements of outside counsel), to which any Indemnified Party may become subject arising out of or in connection with or relating to this Equity Commitment Agreement or the advance of expenses under transaction documents and the procedures and to the fullest extent permitted transactions contemplated hereby, or any breach by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Equity Commitment Agreement or repeal of any Plan Support Agreement, or any claim, litigation, investigation or proceeding relating to any of the provisions thereof foregoing, regardless of whether any Indemnified Party is a party thereto, and the Company shall limit reimburse each Indemnified Party upon demand for all reasonable and documented out-of-pocket legal and other expenses incurred by it in connection with investigating, preparing to defend or eliminate defending, or providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any of the right foregoing (including, without limitation, in connection with the enforcement of the indemnification obligations set forth herein), irrespective of whether the transactions contemplated hereby are consummated, except to indemnification provided hereunder the extent such cost or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from an Indemnified Party’s bad faith, gross negligence or willful misconduct or from such Indemnified Party’s breach of the relevant Plan Support Agreement, as applicable, or this Equity Commitment Agreement; provided, that the Indemnifying Party shall not have to reimburse the legal fees and expenses of more than one outside counsel (and any local counsel) for all Indemnified Persons with respect to acts any specific matter for which indemnification is sought unless, as reasonably determined by any such Indemnified Person or omissions occurring prior to its counsel, representation of all such amendment Indemnified Persons would be inappropriate or repeal. The indemnification shall be payable solely from the assets impracticable or create an actual or potential conflict of the Company and no Member, Manager or Officer shall have any personal liability thereforinterest.
(b) To the fullest extent permitted by Georgia statutory The Company agrees that no Indemnified Party shall have any liability (whether direct or decisional lawindirect, as amended in contract, tort or interpreted, no Member, Manager or Officer of the Company shall be personally liable otherwise) to the Company or any Members Company Subsidiary for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate in connection with the limitation on liability provided transactions contemplated hereby, except to the Membersextent such liability is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s bad faith, Managers and Officers hereunder with respect to gross negligence or willful misconduct or from such Indemnified Party’s breach of the relevant Plan Support Agreement, as applicable, or this Equity Commitment Agreement. In no event, however, shall any act Indemnified Party be liable on any theory of liability for any special, indirect, consequential or omission occurring prior to such amendment or repealpunitive damages.
(c) No MemberThe Company further agrees that, Manager or Officerwithout the prior written consent of the Requisite Investors, nor their Affiliates, neither the Company nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or Subsidiary will enter into any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason settlement of any lawsuit, claim or other proceeding arising out or relating to of this Equity Commitment Agreement or the transactions contemplated hereby unless such settlement
(i) includes an explicit and unconditional release from the party bringing such lawsuit, claim or other proceeding of all Indemnified Parties and (ii) does not include a statement as to or an admission of fault, culpability, or a failure to act by or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligenceIndemnified Party.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 2 contracts
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional lawLaw, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers each Member and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholdersemployees and agents will be exculpated from, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or will indemnify such Persons from and against, all Claims any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred of them incur by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf connection with the conduct of the Company and affairs of the Company, Holdings or any of their respective Subsidiaries in a manner reasonably believed to be within consistent with its rights and obligations under Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the scope gross negligence, willful misconduct or fraud of such Person, or for clarification, to such Person’s breach of any of the authority conferred on such Covered Person by representations, covenants or agreements under this Agreement.
(b) To the fullest extent permitted by Law, except that expenses to be incurred by an indemnified Person under this Section 4.6(c6.06 will, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking by or on behalf of such indemnified Person to repay such amount in the event that there is a final determination that the indemnified Person is not entitled to be indemnified under this Agreement.
(c) shall not exculpate a Covered The Company has no obligation to purchase and maintain insurance on behalf of any Person from who is or was an agent of the Company, Holdings or any of their respective Subsidiaries against any liability for any such loss, damage or claim asserted against the Person and incurred by reason the Person in any capacity. Each Member shall be responsible for maintaining such insurance 1557237.09-WASSR01A - MSW as it may desire for its own officers, directors, managers, employees who have acted as agents of such Covered Person’s willful misconductthe Company, bad faith Holdings or gross negligenceany of their respective Subsidiaries.
(d) To Each Member (the extent that“first member”) shall indemnify, at law or in equity, a Covered Person has duties (including fiduciary duties) defend and liabilities relating thereto to hold the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the other Members and Managers to replace their Affiliates harmless from any Loss suffered by such other duties and liabilities of Members or their Affiliates if such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision Loss results from (i) in the first member’s gross negligence, willful misconduct, fraud or breach of any of its “sole discretion” representations, covenants or “discretion” or agreements under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Memberthis Agreement, or (ii) in actions taken by the first member or an Affiliate of the first member that (x) change its “good faith” organizational structure or under another express standardlegal form, the Member shall act under such express standard and shall not be subject to any other (y) change its Tax status or different standards imposed characterization (by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity affirmative election or otherwise), or (z) effect a Transfer, assignment or pledge of any Membership Interest (or the interest in a holding vehicle thereof) to, or otherwise cause any such interests to be owned by, a Disqualified Tax Exempt Person.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Indemnification and Exculpation. (a) The From and after the Closing Date, Purchaser shall cause the Acquired Companies to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or in the five years prior to the Closing Date were directors or officers of the Acquired Companies (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of an Acquired Company at any time prior to the Closing Date. Purchaser further agrees that all rights of the Indemnitees to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the Closing Date, as provided for in, or implied by, the Organizational Documents of the Acquired Companies as now in effect (if applicable), any employment or service agreements of the Indemnitees, and any indemnification agreements or arrangements of the Acquired Companies, in each case, in effect as of the date hereof, shall indemnify (i) its Members, Managers survive the Closing Date and Officers shall continue in full force and effect in accordance with their terms to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by lawapplicable Law. The foregoing Such rights of indemnification shall not be exclusive of amended or otherwise modified in any other manner that would adversely affect the rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to Indemnitees, unless such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereformodification is required by Law.
(b) To The provisions of this Section 7.7: (i) are intended to be for the fullest extent permitted by Georgia statutory or decisional lawbenefit of, as amended or interpreted, no Member, Manager or Officer of the Company and shall be personally liable enforceable by, each Indemnitee, his or her heirs and his or her legal representatives; and (ii) are in addition to, and not in substitution for, any other rights to the Company indemnification or contribution that any Members for money damages. No amendment of this Agreement such Indemnitee may have by Contract or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repealotherwise.
(c) No Member, Manager In the event that Purchaser or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives its successors or agents assigns (each, a “Covered Person” and collectively, the “Covered Persons”i) shall be liable to the Company consolidates with or merges into any other Person who has an interest in the Company and is bound by this Agreement for not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any lossPerson, damage or claim incurred by reason then, and in each such case, proper provision shall be made so that the successors and assigns of any act or omission performed or omitted by such Covered Person in good faith on behalf Purchaser shall assume all of the Company and obligations thereof set forth in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence7.7.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting The obligations of Purchaser under this Agreement Section 7.7 shall not be liable terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the Company or consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to any Member for its good faith reliance on the provisions whom this Section 7.7 applies are intended third party beneficiaries of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered PersonSection 7.7).
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Indemnification and Exculpation. No General Partner or (aif applicable) The Company shall indemnify (i) its Memberstrustees, Managers and Officers to the fullest extent permitted by lawfiduciaries, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directorsmembers, shareholders, partners, employeesdirectors, representatives or officers, employees and agents of such General Partner (each, a “Covered Person” and collectively, the “Covered PersonsGeneral Partner Group”) shall be liable to the Company Partnership or the other Partners or any other Person who has an interest in the Company and is bound by this Agreement Holders for any loss, loss or damage or claim incurred by reason of any act or omission performed or omitted to be performed by any member of such Covered Person General Partner Group or by the Partnership in connection with the business of the Partnership, unless such act or omission constitutes fraud, gross negligence, breach of fiduciary duty or willful misconduct. A General Partner who acts or omits to act in good faith on behalf reliance upon written opinion of counsel as to the Company interpretation or application of this Agreement or as to the requirements of law shall be deemed to have satisfied the standard of conduct and in a manner reasonably believed to be within entitled to indemnification insofar as such acts or omissions are alleged to have been contrary to this Agreement or to law. The Partnership, its receiver or its trustee shall defend, indemnify, hold harmless, and pay all judgments and claims against any member of such General Partner Group from any liability, loss or damage incurred by any member of such General Partner Group or by the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred Partnership by reason of any act performed or omitted to be performed by any member of such Covered Person’s General Partner Group or by the Partnership in connection with the business of the Partnership which did not arise out of an action or inaction of such member of the General Partner Group constituting fraud, gross negligence, breach of fiduciary duty or willful misconduct, bad faith or gross negligence.
including costs and attorney’s fees (d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary dutieswhich costs and attorneys’ fees shall be paid as incurred) and liabilities relating thereto to any amounts expended in the Company settlement of any claims of liability, loss or to any Memberdamage; provided, however, that any such Covered Person acting under this Agreement indemnification shall be recoverable only from the assets of the Partnership and not be liable to from the Company or to assets of the Partners. All judgments against the Partnership and any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities member of a Covered Person otherwise existing at law or in equity, are agreed by General Partner Group wherein the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member General Partner Group member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desiresindemnification, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting must first be satisfied from the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwisePartnership assets.
Appears in 1 contract
Samples: Limited Partnership Agreement (MGP Ingredients Inc)
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional lawLaw, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers each Member and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholdersemployees and agents will be exculpated from, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or will indemnify such Persons from and against, all Claims any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred of them incur by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf connection with the conduct of the affairs of the Company and Holdings in a manner reasonably believed to be within consistent with its rights and obligations under Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the scope gross negligence, willful misconduct or fraud of such Person, or for clarification, to such Person’s breach of any of the authority conferred on such Covered Person by representations, covenants or agreements under this Agreement.
(b) To the fullest extent permitted by Law, except that expenses to be incurred by an indemnified Person under this Section 4.6(c6.06 will, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking by or on behalf of such indemnified Person to repay such amount in the event that there is a final determination that the indemnified Person is not entitled to be indemnified under this Agreement.
(c) shall not exculpate a Covered The Company has no obligation to purchase and maintain insurance on behalf of any Person from who is or was an agent of the Company, Holdings or the Project Company against any liability for any such loss, damage or claim asserted against the Person and incurred by reason the Person in any capacity. Each Member shall be responsible for maintaining such insurance as it may desire for its own officers, directors, managers, employees who have acted as agents of such Covered Person’s willful misconductthe Company, bad faith Holdings or gross negligencethe Project Company.
(d) To Each Member (the extent that“first member”) shall indemnify, at law or in equity, a Covered Person has duties (including fiduciary duties) defend and liabilities relating thereto to hold the Company or to other Member and its Affiliates harmless from any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed Loss suffered by the Members and Managers to replace such other duties and liabilities of Member or its Affiliates if such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision Loss results from (i) in the first member’s gross negligence, willful misconduct, fraud or breach of any of its “sole discretion” representations, covenants or “discretion” or agreements under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Memberthis Agreement, or (ii) in actions taken by the first member or an Affiliate of the first member that (x) change its “good faith” organizational structure or under another express standardlegal form, the Member shall act under such express standard and shall not be subject to any other (y) change its Tax status or different standards imposed characterization (by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity affirmative election or otherwise), or (z) effect a Transfer, assignment or pledge of any Membership Interest (or the interest in a holding vehicle thereof) to, or otherwise cause any such interests to be owned by, a Disqualified Tax-Exempt Person.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Indemnification and Exculpation. (a) The Company shall indemnify (iSubject to Section 6(c) its Membershereof, Managers and Officers to the fullest extent permitted by law, the Company shall indemnify and save harmless the Manager, and its officers, directors or employees (each, an “Indemnified Party”) from and against any and all claims, liabilities, damages, losses, costs and expenses (including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and reasonable attorneys’ fees and other legal or other costs and expenses of investigating or defending against any claim or alleged claim but excluding any liabilities for taxes of any Indemnified Party), known or unknown, liquidated or unliquidated, that are incurred by such Indemnified Party and arise out of or in connection with the business of the Company or the performance by such Indemnified Party of its responsibilities hereunder (including, without limitation, those that arise out of or in connection with the advance employment by the Manager of expenses under advisors, agents or other third parties to assist the procedures and Manager in the performance of its duties pursuant to the fullest extent permitted by law, and this Agreement) (ii) other employees and agents each of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification foregoing, a “Claim”); provided, that an Indemnified Party shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right entitled to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to extent such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person Claim arises from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligenceconduct that is otherwise not in accordance with the standard of care set forth in Section 5(a). The termination of any proceeding by settlement, judgment, order or upon a plea of nolo contendre or its equivalent shall not, of itself, create a presumption that an Indemnified Party was engaged in willful misconduct or bad faith. Any person or entity entitled to indemnification from the Company hereunder shall obtain the written consent of the Company (which consent shall not be unreasonably withheld) prior to entering into any agreement or settlement that would result in an obligation of the Company to indemnify such person or entity.
(b) Expenses incurred by an Indemnified Party in defense or settlement of any Claim that may be subject to a right of indemnification hereunder may be advanced by the Company prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the Indemnified Party to repay such amount to the extent that it shall be determined ultimately that such Indemnified Party is not entitled to be indemnified hereunder. The right of any Indemnified Party to the indemnification provided herein shall be cumulative of, and in addition to, any and all rights to which such Indemnified Party may otherwise be entitled by contract or as a matter of law or equity and shall be extended to such Indemnified Party’s successors, assigns and legal representatives.
(c) Promptly after receipt by an Indemnified Party of notice of the commencement of any action or proceeding or threatened action or proceeding in connection with any Claim referred to in Section 6(a), such Indemnified Party shall give written notice thereof to the Company; provided, that the failure of an Indemnified Party to give such notice shall not relieve the Company of its obligations pursuant to this Section 6, except to the extent that the Company is actually prejudiced by such failure to give notice.
(d) To the extent that, at law In case any action or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to proceeding is commenced against any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent Indemnified Party that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not may be subject to indemnification pursuant to this Section 6, the Company shall have the right to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Company to such Indemnified Party of the Company’s election to assume the defense thereof, the Company will be liable for the expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. The Company will not consent to the entry of any other judgment or different standards imposed by this Agreement or enter into any other agreement contemplated herein or by relevant provisions settlement that does not include as an unconditional term the giving to such Indemnified Party a release from all liability in respect of law or in equity or otherwisesuch Claim.
Appears in 1 contract
Samples: Management Services Agreement (Golden Star Resources LTD)
Indemnification and Exculpation. (a) The Each of Parent, Merger Sub and the Company shall indemnify (i) its Membersagree that, Managers and Officers to the fullest extent permitted by lawunder applicable Law, includingall rights to indemnification, without limitation, the advance of expenses under the procedures advancement and exculpation from liabilities for acts or omissions occurring at or prior to the fullest extent permitted by lawEffective Time now existing in favor of the current or former directors, officers and employees of the Company, Parent and its Subsidiaries, and (ii) other employees and agents the fiduciaries currently indemnified under benefit plans of the Company Company, Parent and/or its Subsidiaries, or any Person who comes to serve in such extent capacity prior to the Effective Time, as provided in each of their respective certificates of incorporation, by-laws (or comparable organizational document) or other agreements providing indemnification, advancement or exculpation, shall survive the Merger and shall continue in full force and effect in accordance with their terms, and no such provision in any certificate of incorporation, by-law (or comparable organizational document) or other agreement shall be authorized by amended, modified or repealed in any manner that would adversely affect the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of or protections thereunder to any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder individual with respect to acts or omissions occurring at or prior to such amendment or repealthe Effective Time. The indemnification shall be payable solely In addition, from and after the assets Effective Time, all directors, officers and employees of the Company Parent and no Memberits Subsidiaries, Manager and all fiduciaries currently indemnified under benefit plans of the Company, Parent and/or its Subsidiaries who become directors, officers, employees of Parent and/or its Subsidiaries or Officer fiduciaries under benefit plans of the Parent and/or its Subsidiaries will be entitled to the indemnity, advancement and exculpation rights and protections afforded to directors, officers and employees of Parent and/or its Subsidiaries and to fiduciaries under benefit plans of the Parent and/or its Subsidiaries. From and after the Effective Time, Parent and its Subsidiaries will continue to honor and fulfill all obligations pursuant to any written indemnification agreements with any present and former director or officer of Company, Parent and/or its Subsidiaries in effect as of the date hereof. From and after the Effective Time, Parent shall have any personal liability thereforcause the Surviving Entity to honor and perform, in accordance with their respective terms, each of the covenants contained in this Section 5.1 without limit as to time.
(b) To Notwithstanding any other provisions hereof, the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer obligations of the Company Parent contained in Section 5.1 shall be personally liable to binding upon the Company successors and assigns of Parent and/or its Subsidiaries. In the event Parent or any Members for money damages. No amendment of this Agreement its Subsidiaries, or repeal of any of their respective provisions shall limit successors or eliminate the limitation on liability provided to the Membersassigns, Managers and Officers hereunder (i) consolidates with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or merges into any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in transfers all or substantially all of its “good faith” properties or under another express standard, the Member shall act under such express standard and shall not be subject assets to any other or different standards imposed by this Agreement Person, then, and in each case, proper provision shall be made so that the successors and assigns of Parent or any other agreement contemplated herein or by relevant provisions of law or such Subsidiary, as the case may be, honor the obligations set forth in equity or otherwiseSection 5.1.
Appears in 1 contract
Indemnification and Exculpation. The Borrower hereby agrees tp indemnify and hold harmless the Lender and any affiliates of the Lender (a) The Company shall indemnify (i) its Membersand all directors, Managers and Officers to the fullest extent permitted by lawofficers, includingemployees, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees attorneys and agents of the Company to such extent as shall be authorized by the Board of Managers Lender and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any affiliates of the provisions thereof shall limit Lender) from and against all Claims, causes of action, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, fees, taxes and other liabilities, including without limitation reasonable attorneys' fees (whether incurred at trial, at any appellate level, or eliminate without litigation), by whomsoever brought or caused, which may at any time or times be imposed upon, incurred by or asserted against the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company Lender or any other Person who has an interest of such indemnitees, in the Company and is bound by this Agreement for any loss, damage way arising under or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed relating to be within the scope of the authority conferred on such Covered Person by this Agreement, the Mortgage Debenture or any transaction contemplated herein or therein (except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason to the extent of such Covered Person’s indemnitee's gross negligence or willful misconduct). Moreover, except to the extent of his, her or its gross negligence or willful misconduct, bad faith or gross negligence.
(d) To neither the extent that, Lender nor any other of such indemnitees shall at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto any time incur any liability whatsoever to the Company Borrower (and the Borrower hereby expressly waives and releases any and all Claims and causes of action whatsoever which the Borrower may at any time or to any Member, any such Covered Person acting under this Agreement shall not be liable to times have against the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company Lender or any other Memberof such indemnitees) in connection with this Agreement, the Mortgage Debenture, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement transaction contemplated herein or by relevant provisions of law or in equity or otherwisetherein.
Appears in 1 contract
Samples: Loan Agreement (Pricesmart Inc)
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional lawLaw, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers each Member and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholdersemployees and agents will be exculpated from, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or will indemnify such Persons from and against, all Claims any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred of them incur by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf connection with the conduct of the Company and affairs of the Company, Holdings or any of their respective Subsidiaries in a manner reasonably believed to be within consistent with its rights and obligations under Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the scope gross negligence, willful misconduct or fraud of such Person, or for clarification, to such Person’s breach of any of the authority conferred on such Covered Person by representations, covenants or agreements under this Agreement. Mtl#: 2837088.5 1557237.09-WASSR01A - MSW
(b) To the fullest extent permitted by Law, except that expenses to be incurred by an indemnified Person under this Section 4.6(c6.06 will, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking by or on behalf of such indemnified Person to repay such amount in the event that there is a final determination that the indemnified Person is not entitled to be indemnified under this Agreement.
(c) shall not exculpate a Covered The Company has no obligation to purchase and maintain insurance on behalf of any Person from who is or was an agent of the Company, Holdings or any of their respective Subsidiaries against any liability for any such loss, damage or claim asserted against the Person and incurred by reason the Person in any capacity. Each Member shall be responsible for maintaining such insurance as it may desire for its own officers, directors, managers, employees who have acted as agents of such Covered Person’s willful misconductthe Company, bad faith Holdings or gross negligenceany of their respective Subsidiaries.
(d) To Each Member (the extent that“first member”) shall indemnify, at law or in equity, a Covered Person has duties (including fiduciary duties) defend and liabilities relating thereto to hold the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the other Members and Managers to replace their Affiliates harmless from any Loss suffered by such other duties and liabilities of Members or their Affiliates if such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision Loss results from (i) in the first member’s gross negligence, willful misconduct, fraud or breach of any of its “sole discretion” representations, covenants or “discretion” or agreements under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Memberthis Agreement, or (ii) in actions taken by the first member or an Affiliate of the first member that (x) change its “good faith” organizational structure or under another express standardlegal form, the Member shall act under such express standard and shall not be subject to any other (y) change its Tax status or different standards imposed characterization (by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity affirmative election or otherwise), or (z) effect a Transfer, assignment or pledge of any Membership Interest (or the interest in a holding vehicle thereof) to, or otherwise cause any such interests to be owned by, a Disqualified Tax Exempt Person.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pattern Energy Group Inc.)
Indemnification and Exculpation. (a) The Subject to Section 7, the Company shall indemnify (i) its Membersand hold harmless, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents each of the Company to such extent as shall be authorized by the Board of Managers Officers, Members and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Membersdirect and indirect executors, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Memberadministrators, Manager or Officerheirs, nor their Affiliatesassigns, nor any of their respective officerspartners, directorsmembers, shareholders, partners, employees, representatives or agents agents, directors and officers, as applicable, in each case in their capacity as such (each, a “Covered Person” and collectively, the “Covered PersonsIndemnitees”), from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments, awards, costs and expenses (including reasonable attorneys’ fees, disbursements and court costs) (collectively, “Losses”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person Indemnitees in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Indemnitee by this Agreement, provided that the foregoing indemnity shall not apply to any Losses which arise out of, but only to the extent such Losses arise out of, the gross negligence, fraud or willful misconduct of such Indemnitee as determined by the final, nonappealable order of a court of competent jurisdiction. Provided, however, that subject to Section 11, any indemnity under this Section 21 by the Company shall be provided out of and to the extent of Company assets only, and the Members shall not have personal liability on account thereof; and provided further, that so long as the Master Agreement remains in effect or any of the Obligations is outstanding, no indemnity payment from funds of the Company (as distinct from funds from other sources, such as insurance) of any indemnity under this Section 21 shall be payable. Notwithstanding anything to the contrary contained herein, the Company’s obligation to indemnify any party hereunder shall, for so long as there remains any obligation of the Partnership under the Inducement Agreement, be fully subordinated to the Obligations and, to the fullest extent permitted by law, shall not constitute a claim against the Company in the event that available cash flow is insufficient to pay such obligation.
(b) To the fullest extent permitted by law, the Indemnitees shall not have any liability to the Company or any other Person who is bound by this Agreement for any Losses incurred by reason of any act or omission performed or omitted by such Indemnitees in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Indemnitee by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any where such loss, damage or claim Losses are incurred by reason of such Covered PersonIndemnitee’s gross negligence, fraud or willful misconduct. The Indemnitees shall be entitled to rely upon the advice of legal counsel, bad accountants and other experts, including financial advice of investment bankers, and any act of or failure to act by an Indemnitee in good faith reliance upon such advice shall in no event subject an Indemnitee to liability to the Company or gross negligenceany other Person who is bound by this Agreement.
(c) To the fullest extent permitted by applicable law, expenses (including reasonable legal fees) incurred by an Indemnitee defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 21.
(d) To the fullest extent thatpermitted by law, at law an Indemnitee shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto statements presented to the Company by any Person as to matters the Indemnitee reasonably believes are within such other Person’s professional or to any Memberexpert competence and who has been selected with reasonable care by or on behalf of the Company, any such Covered Person acting under this Agreement shall not be liable including information, opinions, reports or statements as to the Company value and amount of the assets, liabilities, or any other facts pertinent to any Member for its good faith reliance on the existence and amount of assets from which distributions to the Equity Members might properly be paid.
(e) The provisions of this Agreement. The provisions of this Agreement , to the extent that they restrict or eliminate the duties and liabilities of a Covered Person an Indemnitee to the Company or its members otherwise existing at law or in equity, are agreed by the Members and Managers parties hereto to replace such other duties and liabilities of such Covered PersonIndemnitee to the fullest extent permitted by law.
(ef) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant The foregoing provisions of law or in equity or otherwisethis Section 21 shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Indemnification and Exculpation. (a) The Company No Manager, or its Affiliates, shall indemnify (i) its Members, Managers and Officers have any liability to the fullest extent permitted LLC or to any Member for any loss suffered by lawthe LLC which arises out of any action or inaction of any Manager or its Affiliates if such Manager or its Affiliates, includingas the case may be, without limitationin good faith, determined that such course of conduct was in the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents best interests of the Company to LLC and such extent as course of conduct did not constitute gross negligence or willful misconduct of such Manager or its Affiliates. Each Manager and its Affiliates shall be authorized indemnified by the Board of Managers LLC against any losses, judgments, liabilities. expenses and is permitted by law. The foregoing rights of indemnification shall not be exclusive amounts paid in settlement of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted claims sustained by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder it with respect to acts actions taken by such Manager or omissions occurring prior to such amendment or repeal. The its Affiliates on behalf of the LLC, provided that no indemnification shall be payable solely from provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the assets reasonable belief that his action was in the best interest of the Company LLC. Without limiting the foregoing, such indemnification may include payment by the LLC of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated not to be entitled to indemnification under this Section 6.9, which undertaking may be accepted without reference to the financial ability of such person to make repayment, Any indemnification to be provided hereunder may be provided although the person to be indemnified is no longer a Manager or an Affiliate of a Manager.
(b) Notwithstanding the provisions of Section 6.9(a) above, foregoing, no Manager, nor its respective Affiliates, nor any person acting as a broker-dealer, shall be indemnified for any losses, liabilities or expenses arising from or out of a violation of federal or state securities laws or any other intentional or criminal wrongdoing. Any indemnity under this Section 6.9 shall be paid from, and only to the extent of, LLC assets, and no Member, Manager or Officer Member shall have any personal liability therefor.
(b) To on amount thereof. The LLC shall not incur the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer cost of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal that portion of any of their respective provisions shall limit or eliminate the limitation on insurance, other than public liability provided insurance, which insures any party against any liability as to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to which such amendment or repealparty is herein prohibited from being indemnified.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Samples: Operating Agreement (Historic Preservation Properties 1989 Limited Partnership)
Indemnification and Exculpation. (a) The Subject to Section 7, the Company shall indemnify (i) its Membersand hold harmless, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents each of the Company to such extent as shall be authorized by the Board of Managers Officers, Members and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Membersdirect and indirect executors, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Memberadministrators, Manager or Officerheirs, nor their Affiliatesassigns, nor any of their respective officerspartners, directorsmembers, shareholders, partners, employees, representatives or agents agents, directors and officers, as applicable, in each case in their capacity as such (each, a “Covered Person” and collectively, the “Covered PersonsIndemnitees”), from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments, awards, costs and expenses (including reasonable attorneys’ fees, disbursements and court costs) (collectively, “Losses”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person Indemnitees in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Indemnitee by this Agreement, provided that the foregoing indemnity shall not apply to any Losses which arise out of, but only to the extent such Losses arise out of, the gross negligence, fraud or willful misconduct of such Indemnitee as determined by the final, nonappealable order of a court of competent jurisdiction. Provided, however, that subject to Section 11, any indemnity under this Section 21 by the Company shall be provided out of and to the extent of Company assets only, and the Members shall not have personal liability on account thereof; and provided further, that so long as the Master Agreement remains in effect or any of the Obligations is outstanding, no indemnity payment from funds of the Company (as distinct from funds from other sources, such as insurance) of any indemnity under this Section 21 shall be payable. Notwithstanding anything to the contrary contained herein, the Company’s obligation to indemnify any party hereunder shall, for so long as there remains any obligation of the Partnership under the Inducement Agreement, be fully subordinated to the Obligations and, to the fullest extent permitted by law, shall not constitute a claim against the Company in the event that available cash flow is insufficient to pay such obligation. To the fullest extent permitted by law, the Indemnitees shall not have any liability to the Company or any other Person who is bound by this Agreement for any Losses incurred by reason of any act or omission performed or omitted by such Indemnitees in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Indemnitee by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any where such loss, damage or claim Losses are incurred by reason of such Covered PersonIndemnitee’s gross negligence, fraud or willful misconduct. The Indemnitees shall be entitled to rely upon the advice of legal counsel, bad accountants and other experts, including financial advice of investment bankers, and any act of or failure to act by an Indemnitee in good faith or gross negligence.
(d) To the extent that, at law or reliance upon such advice shall in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto no event subject an Indemnitee to liability to the Company or any other Person who is bound by this Agreement. To the fullest extent permitted by applicable law, expenses (including reasonable legal fees) incurred by an Indemnitee defending any claim, demand, action, suit or proceeding shall, from time to any Membertime, any be advanced by the Company prior to the final disposition of such Covered Person acting under claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Agreement Section 21. To the fullest extent permitted by law, an Indemnitee shall not be liable fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any Member for its good faith reliance on other facts pertinent to the provisions existence and amount of this Agreementassets from which distributions to the Equity Members might properly be paid. The provisions of this Agreement Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person an Indemnitee to the Company or its members otherwise existing at law or in equity, are agreed by the Members and Managers parties hereto to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is Indemnitee to the fullest extent permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant law. The foregoing provisions of law or in equity or otherwisethis Section 21 shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Indemnification and Exculpation. (a) The Company Subject to Section 9 and this Section 19, the Partnership shall indemnify (i) its Membersand hold harmless, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents each of the Company to such extent as shall be authorized by the Board of Managers Officers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions Partners and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Membersdirect and indirect executors, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Memberadministrators, Manager or Officerheirs, nor their Affiliatesassigns, nor any of their respective officerspartners, directorsmembers, shareholders, partners, employees, representatives or agents agents, directors and officers, as applicable, in each case in their capacity as such (each, a “Covered Person” and collectively, the “Covered PersonsIndemnitees”), from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments, awards, costs and expenses (including reasonable attorneys’ fees, disbursements and court costs) (collectively, “Losses”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person Indemnitees in good faith on behalf of the Company Partnership and, except for any act or omission constituting the exercise by the Incumbent General Partner of any Exclusive Special General Partner Rights and Powers or requiring the prior written consent of the Special General Partner under Section 9(d), in a manner reasonably believed to be within the scope of the authority conferred on such Covered Indemnitee by this Agreement, provided that the foregoing indemnity shall not apply to any Losses which arise out of, but only to the extent such Losses arise out of, the gross negligence, fraud or willful misconduct of such Indemnitee as determined by the final, nonappealable order of a court of competent jurisdiction; provided, however, that any indemnity under this Section 19 by the Partnership shall be provided out of and to the extent of Partnership assets only, and the Partners shall not have personal liability on account thereof; and provided further, that so long as the Master Agreement remains in effect, no indemnity payment from funds of the Partnership (as distinct from funds from other sources, such as insurance) of any indemnity under this Section 19 shall be payable. Notwithstanding anything to the contrary contained herein, the Partnership’s obligation to indemnify any party hereunder shall, for so long as there remains outstanding any obligation of the Partnership under the Inducement Agreement, be fully subordinated to the obligations of the Partnership under the Inducement Agreement and, to the fullest extent permitted by law, shall not constitute a claim against the Partnership in the event that available cash flow is insufficient to pay such obligation.
(b) To the fullest extent permitted by law but subject to Section 10, Section 11, and Section 19(c), the Indemnitees shall not have any liability (including, without limitation, liabilities for the breach of any fiduciary duties) to the Partnership or any other Person who is bound by this Agreement for any Losses incurred by reason of any act or omission performed or omitted by such Indemnitees in good faith on behalf of the Partnership and, except for any act or omission constituting the exercise by the Incumbent General Partner of any Exclusive Special General Partner Rights and Powers or requiring the prior written consent of the Special General Partner under Section 9(d), in a manner reasonably believed to be within the scope of the authority conferred on such Indemnitee by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any where such loss, damage or claim Losses are incurred by reason of such Covered PersonIndemnitee’s gross negligence, fraud or willful misconduct. The Indemnitees shall be entitled to rely upon the advice of legal counsel, bad accountants and other experts, including financial advice of investment bankers, and any act of or failure to act by an Indemnitee in good faith reliance upon such advice shall in no event subject an Indemnitee to liability to the Partnership or gross negligenceany other Person who is bound by this Agreement.
(c) Notwithstanding any provision to the contrary set forth herein, nothing contained in this Agreement shall be interpreted or construed as (i) eliminating or otherwise restricting in any way the duties (including fiduciary duties) or liabilities for breach of contract or breach of duties (including fiduciary duties) of the Incumbent General Partner to the Partnership and the Partners arising from any act or omission of the Incumbent General Partner in contravention of Section 9(c), Section 9(d) (by reason of the failure to obtain the prior written consent of the Special General Partner) or Section 21(a), or (ii) entitling or providing the Incumbent General Partner or any of its direct and indirect executors, administrators, heirs, assigns, partners, members, shareholders, employees, agents, directors and officers (collectively, the “Incumbent General Partner Parties”) with any rights to indemnification under this Section 9 arising from any act or omission of such Incumbent General Partner Party in contravention of Section 9(c), Section 9(d) (by reason of the failure to obtain the prior written consent of the Special General Partner) or Section 21(a).
(d) To the fullest extent thatpermitted by applicable law, at expenses (including reasonable legal fees) incurred by an Indemnitee defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Partnership of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 19.
(e) To the fullest extent permitted by law or but in equityall events subject to Section 9(c), a Covered Person has Indemnitee shall be fully relieved of duties (including fiduciary duties) ), and liabilities relating thereto fully protected from liability to the Company or to any MemberPartnership, any such Covered Partner or any other Person acting under who is bound by this Agreement shall not be liable to the Company or to any Member for its in relying in good faith reliance on upon the provisions of this Agreement. , upon the records of the Partnership and upon such information, opinions, reports or statements presented to the Partnership by any Person as to matters the Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Partnership, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Partners might properly be paid.
(f) The provisions of this Agreement Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person an Indemnitee to the Partnership or its Partners otherwise existing at law or in equity, are agreed by the Members and Managers parties hereto to replace such other duties and liabilities of such Covered PersonIndemnitee to the fullest extent permitted by law.
(eg) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant The foregoing provisions of law or in equity or otherwisethis Section 19 shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Indemnification and Exculpation. (a) The Company shall (the "INDEMNIFYING PARTY") agrees to indemnify and hold harmless the Placement Agents, their affiliates and their parents and their affiliates, and the respective directors, officers, agents and employees of the Placement Agents, their affiliates and their parents and their affiliates, and each person, if any, who controls any of the Placement Agents within the meaning of the Act or the Exchange Act from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (or actions or proceedings in respect thereof) to which the Placement Agents or such entity or person may become subject related to or arising out of (i) its Members, Managers and Officers to the fullest extent permitted by law, Placement Agents' engagement hereunder including, without limitation, the advance use or content of expenses under the procedures and to Registration Statement, any preliminary prospectus or the fullest extent permitted by lawProspectus, and or any amendment or supplement thereto, or (ii) other employees and agents the activities of the Company to in connection with the Offerings, and will reimburse the Placement Agents and each such extent entity or person for all reasonable legal and other expenses as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adoptincurred in connection with investigating, approve and amend from time to time such resolutions preparing, pursuing or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for defending any such loss, damage claim, damage, judgment, assessment, cost, liability, action, investigation or claim incurred by reason of proceeding whether or not in connection with pending or threatened litigation in which either the Placement Agents or any such Covered Person’s willful misconductentity or person is a party; provided, bad faith or gross negligence.
(d) To the extent thathowever, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to that the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable in the case of clause (i) for losses, claims, damages, judgments, assessments, costs, liabilities or expenses that (x) a court of competent jurisdiction shall have found in a final judgment which is no longer subject to appeal or further review to have arisen solely from the gross negligence or willful misconduct of either of the Placement Agents or (y) are caused by any untrue statement or omission or alleged untrue statement or omission based upon information relating to the Placement Agents furnished in writing to the Company by the Placement Agents specifically for use in the Registration Statement, any preliminary prospectus or any Prospectus or any amendment or supplement thereto. In case any proceeding shall be instituted involving any person in respect to whom indemnity may be sought, such person (the "INDEMNIFIED PARTY") shall promptly notify the indemnifying party in writing; provided, however, that failure to so notify the indemnifying party shall not relieve the indemnifying party from any liability the indemnifying party may have on account of this indemnity or otherwise, except to the extent the indemnifying party shall have been materially prejudiced by such failure. The indemnifying party, upon the request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may reasonably designate in such proceedings and shall pay as incurred the fees and expenses of such counsel related to such proceeding. In any such proceeding, any indemnified party shall the right to retain its own counsel at its own expense, except that the indemnifying party shall pay as incurred the reasonable fees and expenses of counsel retained by the indemnified party in the event that (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any Member such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of all such parties by the same counsel would constitute a real or perceived conflict of interest in the reasonable opinion of the indemnified party, due to actual or potential differing interests between them or (iii) the indemnifying party has failed to assume the defense and employ counsel. The indemnifying party shall not be liable for any settlement of any proceeding effected without its good faith reliance written consent (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party to the extent set forth in this Agreement. The indemnifying party will not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action or proceeding in respect of which indemnification or contribution may be sought hereunder unless such settlement, compromise, consent or termination includes an unconditional release of the indemnified party from any and all liability with respect to such action or proceeding. In the event a claim for indemnification as described herein is unavailable or insufficient, then the Company shall contribute to the aggregate losses, claims, damages or liabilities to which the Placement Agents, their affiliates and their parents and their affiliates, and the respective directors, officers, agents, employees or controlling persons may be subject in such amount as is appropriate to reflect the relative benefits received by the Company on the provisions one hand and the party seeking contribution on the other and the relative fault of this Agreementthe Company on the one hand and the party seeking contribution on the other, as well as any relevant equitable contributions; provided, however, that in no event shall the Company contribute less than the amount necessary to ensure that the Placement Agents and such entities and persons, in the aggregate, are not liable for any losses, claims, damages, judgments, assessments, costs and other liabilities in excess of the amount of the Placement Fee actually received by the Placement Agents hereunder. The relative benefits received by the Company and on the one hand and the Placement Agents on the other shall be deemed to be in the same proportion as the total net proceeds from the Concurrent Offering (before deducting expenses) received by the Company bear to the Placement Fee paid to the Placement Agents by the Company. The provisions of this Agreement relating to reimbursement, indemnification and contribution shall survive termination, modification or completion of the extent that they restrict engagement of the duties Placement Agents and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty binding upon any successors or obligation to give any consideration to any interest assigns of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwiseCompany.
Appears in 1 contract
Indemnification and Exculpation. (a) The Company shall indemnify the Manager and its Affiliates (and their respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders) (collectively, “Indemnified Manager Persons”) in respect of, and hold it harmless from and against, any and all Losses suffered, incurred or sustained by any Indemnified Manager Person or to which it becomes subject, however so arising whether under tort, contract, negligence, strict liability or otherwise, to the extent resulting from, arising out of, or relating to or in connection with (i) its Membersany breach of any covenant, Managers obligation or agreement on the part of any member of the Company Group contained in this Agreement, (ii) the nonfulfillment of or failure to perform any covenant or agreement on the part of any member of the Company Group contained in this Agreement, and Officers (iii) the Services or this Agreement, except to the fullest extent permitted that any Losses have been caused by lawthe bad faith, gross negligence, willful misconduct or actual fraud of Manager or any of its Affiliates or representatives, and for any Losses suffered, incurred, or sustained by an Indemnified Manager Person as a result of any uncured, intentional, and material breach by the Manager of any of its covenants or agreements contained in this Agreement. The Company will reimburse the Indemnified Manager Persons for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses of one counsel for all such Indemnified Manager Persons (and any required local counsel) and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Manager Persons are entitled to indemnification under the terms of this Section 5.8(a), or any action or proceeding arising therefrom, whether or not such Indemnified Manager Person is a party thereto.
(b) In no event shall either Party or its respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders have any liability for any Losses under any provision of this Agreement for any punitive, consequential, special or indirect damages, whether based on statute, contract, tort or otherwise, and whether or not arising from the other Party’s sole, joint, or concurrent negligence, strict liability, criminal liability or other fault other than punitive, consequential, special or indirect damages suffered by a Person other than an Indemnified Manager Person for which the Company has responsibility pursuant to this Article V.
(c) The Parties acknowledge and agree that the indemnification provisions of this Article V and any other rights and remedies available to a Party under this Agreement are cumulative and in addition to, not exclusive of or in substitution for, any implied rights or remedies provided by law or equity for the breach or nonfulfillment of any covenant or agreement on the part of the Company and Manager under this Agreement.
(d) Notwithstanding Manager’s agreement to perform, or cause to be performed, the Services in accordance with the provisions hereof, the Company acknowledges, on its own behalf and on behalf of each member of the Company Group, that performance by Manager or any other Person of Services pursuant to this Agreement will not subject Manager or any other Indemnified Manager Persons to any Losses whatsoever, except to the extent resulting from, arising out of or relating to or in connection with Manager’s bad faith, gross negligence, willful misconduct, or actual fraud in performing its obligations under this Agreement; provided, however, that (i) Manager’s and each of its Affiliates (and their respective directors, officers, employees, managers, members, partners, controlling Persons and equityholders) aggregate liability, collectively, as a result of such bad faith, gross negligence, willful misconduct or actual fraud will be limited to an amount equal to the G&A Costs paid by the Company to Manager over the 24 month period preceding the date of the action or inaction that gave rise to such liability and (ii) SN shall be liable for the Losses incurred by the Company described in the preceding clause (i); provided, further, that any damages payable pursuant to this (d) shall be subject to the terms and conditions of the Xxxxxxx Credit Agreement; provided, further, however, that if any of such Losses are covered by any insurance policy of the Company, the aggregate liability of such Indemnified Manager Person with respect to such Losses shall be reduced by the amount recovered by the Company under such policy in respect of such Losses.
(e) Whenever any claim arises for indemnification hereunder, the indemnified Person shall promptly notify the indemnifying Party of the claim and, when known, the facts constituting the basis for such claim, except that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a Third Party, except as otherwise expressly provided in this Section 5.8, such notice shall specify, if known, the amount or an estimate of the amount of the Losses asserted by such Third Party.
(f) In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a Person who is not a Party, the indemnifying Party, may, upon notice to the indemnified Person, assume the defense of any such claim or legal proceeding. Except with the written consent of the indemnified Person, the indemnifying Party shall not consent to the entry of any judgment or settlement arising from any such claim or legal proceedings which, in each case, provides for any non-monetary relief or does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified Person of a release from all Losses in respect thereof, unless in the latter case the indemnifying Party has actually paid to the indemnified Person the full amount of such judgment or settlement. Any indemnified Person shall be entitled to participate in (but not control) the defense of any such claim or litigation resulting therefrom. If the indemnifying Party does not elect to control the litigation as provided above, the indemnified Person may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation, after giving notice of the advance of expenses under the procedures and same to the fullest extent permitted by lawindemnifying Party, on such terms as such indemnified Person may deem appropriate, and the indemnifying Party shall promptly reimburse the indemnified Person (iisubject to Section 5.8(b)) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time as such resolutions Losses are incurred. All indemnification hereunder shall be effected by payment of cash or contracts implementing such provisions delivery of a certified or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any official bank check in the amount of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereforLosses.
(bg) To the fullest extent permitted Except as provided above, all claims for Losses brought by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Third Parties against Company or any Members for money damages. No amendment subsidiary (x) arising out of this Agreement or repeal of in any of their respective provisions shall limit or eliminate the limitation on liability provided way relating to the Membersprovision of Services hereunder and (y) not discharged by insurance required hereunder, Managers and Officers hereunder shall only be settled or, with respect to any act or omission occurring prior to such amendment or repeal.
(c) No MemberManager’s concurrence, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound defended by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent thatManager, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered PersonCompany’s expense.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Samples: Management Services Agreement (Sanchez Energy Corp)
Indemnification and Exculpation. (a) The Company No Manager, or his, her or its Affiliates, or any officer of the Company, or any SC Member, or the Tax Matters Representative shall indemnify (i) its Members, Managers and Officers have any liability to the fullest extent permitted Company or to any Member for any loss suffered by lawthe Company that arises out of any action or inaction of any Manager or his, includingher or its Affiliates or officer or SC Member or the Tax Matters Representative, without limitationif such Manager or his, her or its Affiliates or officer or SC Member or the advance Tax Matters Representative, as the case may be, in good faith, determined that such course of expenses under conduct was in the procedures and to the fullest extent permitted by law, and (ii) other employees and agents best interests of the Company to and if such extent as course of conduct did not constitute gross negligence or willful misconduct of such Manager or his, her or its Affiliates or officer or SC Member or the Tax Matters Representative. Each Manager and his, her or its Affiliates, each officer, each SC Member and the Tax Matters Representative shall be authorized indemnified by the Board Company against any losses, judgments, liabilities, expenses and amounts paid in settlement of Managers any claims sustained by it with respect to actions taken by such Manager or his, her or its Affiliates or officer or SC Member or the Tax Matters Representative on behalf of the Company, provided that the Company shall not indemnify any Person with respect to any matter as to which such Person shall have been adjudicated in any proceeding to have acted with gross negligence or willful misconduct. Without limiting the foregoing, such indemnification may include payment by the Company of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the Person indemnified to repay such payment if such Person shall be adjudicated not to be entitled to indemnification under this Section 5.11, which undertaking may be accepted without reference to the financial ability of such Person to make repayment. Any indemnification to be provided hereunder may be provided although the Person to be indemnified is no longer a Manager or an Affiliate of a Manager or an officer or a SC Member or the Tax Matters Representative. Any indemnity under this Section 5.11 shall be paid from, and is permitted by lawonly to the extent of, Company assets, and no Member shall have any personal liability on account thereof. The foregoing rights of indemnification provided for herein shall not be deemed exclusive of any other rights to which those seeking indemnification indemnified may be entitledentitled under any agreement, vote of Members or disinterested Managers or otherwise, both as to action in their official capacity and as to action in another capacity while holding such office, and shall continue as to a Person who has ceased to be a Manager (or an Affiliate of a Person who has ceased to be a Manager) or officer or SC Member or the Tax Matters Representative and shall inure to the benefit of the heirs, executors and administrators of such a Person. The Board Any repeal or modification of Managers may take such action as is necessary to carry out these indemnification the foregoing provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement Section 5.11 by the Members shall not adversely affect any right or repeal protection of a Manager or officer or SC Member or the Tax Matters Representative existing at the time of, or increase the liability of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To officer or SC Member or the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder Tax Matters Representative with respect to any act acts or omission omissions of such Manager or officer or SC Member or Tax Matters Representative occurring prior to to, such amendment repeal or repealmodification.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory or decisional lawLaw, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers each Member and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholdersemployees and agents will be exculpated from, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or will indemnify such Persons from and against, all Claims any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred of them incur by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within consistent with its rights and obligations under Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the scope gross negligence, willful misconduct or fraud of such Person, or for clarification, to such Person’s breach of any of the authority conferred on such Covered Person by representations, covenants or agreements under this Agreement.
(b) To the fullest extent permitted by Law, except that expenses to be incurred by an indemnified Person under this Section 4.6(c6.06 will, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking by or on behalf of such indemnified Person to repay such amount in the event that there is a final determination that the indemnified Person is not entitled to be indemnified under this Agreement.
(c) shall not exculpate a Covered The Company has no obligation to purchase and maintain insurance on behalf of any Person from who is or was an agent of the Company, Holdings or the Project Company against any liability for any such loss, damage or claim asserted against the Person and incurred by reason the Person in any capacity. Each Member shall be responsible for maintaining such insurance as it may desire for its own officers, directors, managers, employees who have acted as agents of such Covered Person’s willful misconductthe Company, bad faith Holdings or gross negligencethe Project Company.
(d) To Each Member (the extent that“first member”) shall indemnify, at law defend and hold the other Member and its Affiliates harmless from any Loss suffered by such other Member or in equityits Affiliates if such Loss results from (i) the first member’s gross negligence, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company willful misconduct, fraud or to breach of any Memberof its representations, any such Covered Person acting covenants or agreements under this Agreement shall not be liable to or the Company or to any Member for its good faith reliance on the provisions of this Voting Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in actions taken by the first member or an Affiliate of the first member that (x) change its “good faith” organizational structure or under another express standardlegal form, the Member shall act under such express standard and shall not be subject to any other (y) change its Tax status or different standards imposed characterization (by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity affirmative election or otherwise), or (z) effect a Transfer, assignment or pledge of any Membership Interest (or the interest in a holding vehicle thereof) to, or otherwise cause any such interests to be owned by, a Disqualified Tax-Exempt Person.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To the fullest extent permitted by Georgia statutory applicable Law, the Corporation shall indemnify, hold harmless and defend each Covered Person from and against any and all losses, claims, damages, liabilities, whether joint or decisional lawseveral, expenses (including legal fees and expenses), judgments, fines and amounts paid in settlement (collectively, “Indemnified Losses”), incurred or suffered by such Covered Person, as amended a party or interpretedotherwise, no Memberin connection with any threatened, Manager pending or Officer completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative, whether formal or informal, and whether or not by or in the right of the Company Corporation, arising out of or in connection with any act or omission, or alleged act or omission, performed or omitted to be performed by such Covered Person in connection with or in any way related to the business or the operation of the Corporation or any Subsidiary of the Corporation, unless it is determined in a final, non-appealable judgment of a court of competent jurisdiction that the Indemnified Losses were the result of Cause with respect to such Covered Person. Notwithstanding the foregoing, other than any claim to enforce its rights under this Article 5, the Corporation shall not be obligated to indemnify any Covered Person in connection with any action, suit or proceeding initiated by such Covered Person unless the initiation of such action, suit or proceeding is approved by the Board of Directors.
(b) No Covered Person shall be personally liable to the Company Corporation or to any Stockholder for any loss or damage sustained by the Corporation or any Members for money damages. No amendment Stockholder, unless it is determined in a final, non-appealable judgment of this Agreement a court of competent jurisdiction that the loss or repeal damage shall have been the result of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder Cause with respect to such Covered Person. The negative disposition of any act claim, demand, action, suit or omission occurring prior proceeding, whether civil, criminal, administrative or investigative, whether formal or informal, and whether by or in the right of the Corporation, by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Covered Person acted in a manner contrary to such amendment or repealthe standard set forth in the previous sentence.
(c) No MemberTo the fullest extent permitted by applicable Law, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents costs and expenses (each, a “Covered Person” including attorneys’ fees and collectively, the “Covered Persons”expenses) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such a Covered Person in good faith defending or otherwise participating in any claim, demand, action, suit or proceeding subject to this Section 5.01 shall be advanced by the Corporation prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Corporation of an undertaking by or on behalf of the Company and Covered Person to repay such amount in a manner reasonably believed the event it is ultimately determined that the Covered Person is not entitled to be within the scope of the authority conferred on such Covered Person by indemnified therefor pursuant to this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligenceSection 5.01.
(d) To The Corporation hereby acknowledges that certain of the Covered Persons may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more other Persons (but not including any such other Person to the extent thatsuch Person would have an obligation to provide indemnification, at law advancement of expenses and/or insurance pursuant to a contractual obligation to the Corporation or in equityany of its Subsidiaries) (collectively, the “Secondary Indemnitors”), which may include Persons who employ a Covered Person has duties (including fiduciary duties) or of which a Covered Person is a partner or member or whose respective Affiliates, affiliated investment funds, managed funds and liabilities relating thereto to the Company or to any Membermanagement companies, any if applicable, have such Covered Person acting under as a partner or member. The Corporation hereby agrees (i) that it is the indemnitor of first resort in respect of the matters in this Agreement Section 5.01 (i.e., the Corporation’s obligations to each Covered Person are primary and any obligation of the Secondary Indemnitors to advance expenses and/or provide indemnification for the same expenses and liabilities incurred by Covered Persons are secondary) and (ii) that it shall not be required to advance the full amount of expenses incurred by Covered Persons and shall be liable to for the Company or to full amount of any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement Indemnified Losses to the extent that they restrict the duties legally permitted and liabilities of a Covered Person otherwise existing at law or in equity, are agreed as required by the Members and Managers to replace such other duties and liabilities terms of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein between the Corporation and the relevant Covered Person, without regard to any rights that such Covered Person may have against any Secondary Indemnitor. The Corporation further agrees that no advancement or payment by any Secondary Indemnitor shall affect the foregoing and that any relevant provisions Secondary Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of the relevant Covered Persons against the Corporation. The Corporation and each Covered Person agree that the Secondary Indemnitors are express third party beneficiaries of this Section 5.01.
(e) The indemnification provided by this Section 5.01 shall be in addition to any other rights to which any Covered Person may be entitled under this Agreement or any other agreement with the Corporation or any other Person, as a matter of law or in equity or otherwise, and shall inure to the benefit of the heirs, legal representatives, successors, assigns and administrators of the Covered Person.
Appears in 1 contract
Indemnification and Exculpation. (a) The Each of Parent, Merger Sub and the Company shall indemnify (i) its Membersagree that, Managers and Officers to the fullest extent permitted by lawunder applicable Law, includingall rights to indemnification, without limitation, the advance of expenses under the procedures advancement and exculpation from liabilities for acts or omissions occurring at or prior to the fullest extent permitted by lawEffective Time now existing in favor of the current or former directors, officers and employees of the Company, Parent and its Subsidiaries, and (ii) other employees and agents the fiduciaries currently indemnified under benefit plans of the Company Company, Parent and/or its Subsidiaries, or any Person who comes to serve in such extent capacity prior to the Effective Time, as provided in each of their respective certificates of incorporation, by-laws (or comparable organizational document) or other agreements providing indemnification, advancement or exculpation, shall survive the Merger and shall continue in full force and effect in accordance with their terms, and no such provision in any certificate of incorporation, by-law (or comparable organizational document) or other agreement shall be authorized by amended, modified or repealed in any manner that would adversely affect the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of or protections thereunder to any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder individual with respect to acts or omissions occurring at or prior to such amendment or repealthe Effective Time. The indemnification shall be payable solely In addition, from and after the assets Effective Time, all directors, officers and employees of the Company Parent and no Memberits Subsidiaries, Manager and all fiduciaries currently indemnified under benefit plans of the Company, Parent and/or its Subsidiaries who become directors, officers, employees of Parent and/or its Subsidiaries or Officer fiduciaries under benefit plans of the Parent and/or its Subsidiaries will be entitled to the indemnity, advancement and exculpation rights and protections afforded to directors, officers and employees of Parent and/or its Subsidiaries and to fiduciaries under benefit plans of the Parent and/or its Subsidiaries. From and after the Effective Time, Parent and its Subsidiaries will continue to honor and fulfill all obligations pursuant to any written indemnification agreements with any present and former director or officer of Company, Parent and/or its Subsidiaries in effect as of the date hereof. From and after the Effective Time, Parent shall have any personal liability thereforcause the Surviving Entity to honor and perform, in accordance with their respective terms, each of the covenants contained in this Section 5.1 without limit as to time.
(b) To From and after the fullest extent permitted by Georgia statutory Effective Time, Parent shall and shall cause its Subsidiaries to maintain directors’ and officers’ liability insurance on terms no less favorable in coverage and amount than any applicable insurance in effect for directors and officers of Parent and/or its Subsidiaries immediately prior to the Effective Time. The obligations in this Section 5.1(b) shall survive the Closing and shall not be terminated or decisional law, as amended or interpreted, no Member, Manager or Officer modified in any manner that could reasonably be expected to adversely affect any person to whom this Section 5.1(b) applies without the consent of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repealParent Representative.
(c) No MemberNotwithstanding any other provisions hereof, Manager the obligations of Parent contained in Section 5.1 shall be binding upon the successors and assigns of Parent and/or its Subsidiaries. In the event Parent or Officerany of its Subsidiaries, nor their Affiliates, nor or any of their respective officerssuccessors or assigns, directors, shareholders, partners, employees, representatives (i) consolidates with or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or merges into any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in transfers all or substantially all of its “good faith” properties or under another express standard, the Member shall act under such express standard and shall not be subject assets to any other or different standards imposed by this Agreement Person, then, and in each case, proper provision shall be made so that the successors and assigns of Parent or any other agreement contemplated herein or by relevant provisions of law or such Subsidiary, as the case may be, honor the obligations set forth in equity or otherwiseSection 5.1.
Appears in 1 contract
Indemnification and Exculpation. (a) The From and after the Closing Date, Purchaser shall cause the Acquired Company to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or in the five years prior to the Closing Date were directors or officers of the Acquired Company (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of the Acquired Company at any time prior to the Closing Date. Purchaser further agrees that all rights of the Indemnitees to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the Closing Date, as provided for in, or implied by, the Organizational Documents of the Acquired Company as now in effect (if applicable), any employment or service agreements of the Indemnitees, and any indemnification agreements or arrangements of the Acquired Company, in each case, in effect as of the date hereof, shall indemnify (i) its Members, Managers survive the Closing Date and Officers shall continue in full force and effect in accordance with their terms to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by lawapplicable Law. The foregoing Such rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions amended or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder otherwise modified with respect to acts or omissions occurring the period prior to such amendment or repeal. The indemnification shall be payable solely from the assets Closing in any manner that would adversely affect the rights of the Company and no MemberIndemnitees, Manager or Officer shall have any personal liability thereforunless such modification is required by Law.
(b) To The provisions of this Section 7.7: (i) are intended to be for the fullest extent permitted by Georgia statutory or decisional lawbenefit of, as amended or interpreted, no Member, Manager or Officer of the Company and shall be personally liable enforceable by, each Indemnitee, his or her heirs and his or her legal representatives; and (ii) are in addition to, and not in substitution for, any other rights to the Company indemnification or contribution that any Members for money damages. No amendment of this Agreement such Indemnitee may have by Contract or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repealotherwise.
(c) No Member, Manager In the event that Purchaser or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives its successors or agents assigns (each, a “Covered Person” and collectively, the “Covered Persons”i) shall be liable to the Company consolidates with or merges into any other Person who has an interest in the Company and is bound by this Agreement for not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any lossPerson, damage or claim incurred by reason then, and in each such case, proper provision shall be made so that the successors and assigns of any act or omission performed or omitted by such Covered Person in good faith on behalf Purchaser shall assume all of the Company and obligations thereof set forth in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence7.7.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting The obligations of Purchaser under this Agreement Section 7.7 shall not be liable terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the Company or consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to any Member for its good faith reliance on the provisions whom this Section 7.7 applies are intended third party beneficiaries of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered PersonSection 7.7).
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers to the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability therefor.20
(b) To the fullest extent permitted by Georgia Texas statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members and Managers to replace such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Indemnification and Exculpation. (a) The Company shall indemnify (i) its Members, Managers and Officers Subject to the fullest extent permitted by lawprovisions of Sections 23 and 24, including, without limitation, the advance of expenses under the procedures and to the fullest extent not covered by insurance required to be carried by Landlord, Tenant shall indemnify, protect, defend and hold Landlord harmless from all loss, cost, liability, damage or expense (including, but not limited to, penalties, fines, reasonable attorneys' fees or costs (but not lost profits or consequential damages)) (collectively, "Claims") to any person, property or entity arising from Tenant's use of the Premises or the conduct of its business therein or from any activity, work or thing done or permitted to be done by lawTenant, or any of Tenant's agents, employees or contractors in or about the Premises, the Building or Common Areas. Tenant shall further indemnify, protect, defend and (ii) other hold Landlord harmless from all claims arising from any breach or default in the performance of any obligation to be performed by Tenant under the express terms of this Lease for which Tenant has received the prior written notice of such default by Tenant required under this Lease and has had a reasonable period of time within which to cure such default pursuant to the provisions hereof, or arising from the willful misconduct or negligence of Tenant or of its agents, contractors, invitees or employees and agents of the Company to from and against all costs, reasonable attorneys' fees, expenses and liabilities (but not lost profits or consequential damages) incurred in or about such extent as claim or any action or proceeding brought thereon. In case any action or proceeding shall be authorized brought against Landlord by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive reason of any other rights to which those seeking indemnification may be entitledsuch claim, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of Notwithstanding any of the provisions thereof foregoing, however, in no event whatsoever shall limit Tenant be liable for Landlord's lost profits or eliminate Landlord's consequential damages beyond the right to indemnification provided hereunder with respect to acts rent payable by Tenant under this Lease or omissions occurring prior to such amendment or repeal. The indemnification shall be rent payable solely from by other tenants in the assets of the Company and no Member, Manager or Officer shall have any personal liability thereforProject.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable Subject to the Company or any Members for money damages. No amendment provisions of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided Sections 23 and 24, and to the Membersextent not covered by insurance required to be carried by Tenant, Managers Landlord shall indemnify, protect, defend and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Memberhold harmless Tenant, Manager or Officer, nor their Affiliates, nor any of its Affiliates and their respective officers, directors, shareholderspartners, partnersagents and employees from all Claims to any person, property or entity arising from or in connection with Landlord's activities in the Building (except for damage to the Tenant Improvements and Tenant's personal property, fixtures, furniture and equipment in the Premises, to the extent Tenant is required to obtain the requisite insurance coverage pursuant to the Lease) or the Project and any default in the performance of any obligation on Landlord's part to be performed under the express terms of this Lease for which Landlord has received at least thirty (30) days prior written notice of such default by Landlord and has had a reasonable period of time within which to cure such default pursuant to the provisions hereof, or arising from the willful misconduct or negligence of Landlord or its agents, employees, representatives invitees or agents (eachcontractors or arising from any noncompliance of the Building and/or the Project with any laws relating to disable access, a “Covered Person” and collectivelyor Claims arising from the presence in the Premises, the “Covered Persons”Building and/or the Project of hazardous substances, except to the extent such hazardous substances were placed in or on the Premises, the Building and/or the Project by Tenant (Landlord's indemnity hereunder will survive the expiration of the Term of, or any termination of the Lease) and from and against all costs, reasonable attorneys' fees, expenses and liabilities incurred in or about such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against Tenant by reason of any such claim, Landlord upon notice from Tenant shall defend the same at Landlord's expense by counsel approved in writing by Tenant. Notwithstanding any of the foregoing, however, in no event whatsoever shall Landlord be liable for Tenant's lost profits or Tenant's consequential damages.
(c) Notwithstanding any of the foregoing, because Tenant is required to insure fully all of its own personal property and Tenant Improvements, neither Landlord nor any agent, employee or contractor of Landlord shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement Tenant for any loss, injury or damage to any personal property of Tenant or claim incurred by reason of any act agent, employee, contractor or omission performed or omitted by such Covered Person in good faith on behalf invitee of Tenant. In addition, except to the Company and in a manner reasonably believed extend required to be within covered by Landlord's insurance under this Lease, neither Landlord nor any agent, employee or contractor of Landlord shall be liable for any damage caused by other lessees or persons in or about the scope of the authority conferred on such Covered Person by this AgreementBuilding. Similarly, except that this Section 4.6(c) Tenant shall not exculpate a Covered Person from liability be responsible for any such lossdamage to the Building, damage Building Structure and/or Building Systems to the extent covered by insurance that Landlord carries or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligenceis required to carry under this Lease.
(d) To the extent that, at law or The indemnities set forth in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement Section 20 shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement apply to the extent that they restrict the duties any liability or damage is covered by insurance maintained by Tenant or Landlord. Tenant's agreement to indemnify and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members hold Landlord harmless pursuant to Subparagraph 20(a) and Managers Landlord's agreement to replace such other duties indemnify and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required hold Tenant harmless pursuant to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.Subparagraph 20
Appears in 1 contract
Indemnification and Exculpation. After the Closing, Sponsor shall indemnify, reimburse and hold harmless the Acquirer for all liabilities, losses, damages, costs (including legal costs), expenses, claims, interest, awards, judgments and penalties (collectively, “Damages”) suffered or incurred by the Acquirer or its affiliates arising out of or in connection with (1) a breach of the representations and warranties provided in Sections 8 and 9 of this Agreement and the covenants provided in Sections 5 and 6, and (2) any actions, suits, or proceedings brought or initiated by the public shareholders of SPAC against SPAC or Sponsor in connection with the delay in making the Specified Extension Payments (the “Shareholders Litigation”). After the Closing, Acquirer shall indemnify, reimburse and hold harmless the Sponsor for all Damages suffered or incurred by the Sponsor or its affiliates arising out of or in connection with a breach of the representations and warranties provided in Section 10 of this Agreement and the covenants provided in this Agreement. Notwithstanding the foregoing, (I) Acquirer shall not be entitled to receive any indemnification from Sponsor unless the total Damages incurred by Acquirer exceeds the amount of the Cash Excess Amount, and then the recoverable amount shall be limited to only the amount of Damages that exceeds the Cash Excess Amount, and (II) any claim for indemnification with respect to any Shareholders Litigation shall only be satisfied by a transfer to Acquirer of the applicable portion of the Relevant Shares, with the value assigned to each of the Relevant Shares being (a) The Company shall indemnify (i) its Members$10, Managers and Officers in the case of a claim made prior to the fullest extent permitted closing of Business Combination or (b) the closing price reported on Bloomberg of each Relevant Share (or share into which each Relevant Share is converted) on the last trading day before the date of the claim, in each case, of a claim made after the closing of a Business Combination; provided that, this limitation shall not apply to a claim for indemnification by lawAcquirer against Sponsor with respect to any Shareholders Litigation if all of the Relevant Shares have been transferred to Acquirer in accordance with Section 6(g). The Cash Excess Amount shall only be used to pay bona fide expenses of the SPAC in pursuit of or in connection with a Business Combination, including, without limitationand in connection with any claim hereunder, the advance use of expenses under the procedures Cash Excess Account shall be subject to reasonable review of the Sponsor. The indemnification provisions set forth in this Section 12 shall be the sole and exclusive post-Closing remedy available to any Party in respect of the Transactions and the other transactions contemplated by this Agreement, including with respect to any breach of any representation, warranty, covenant or agreement in this Agreement. SPAC shall renew or otherwise extend its current directors’ and officers’ liabilities insurance policy to the expiration date of SPAC, if and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by lawextended. The foregoing rights of indemnification shall not be exclusive of any other All rights to which those seeking exculpation or indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions for acts or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal omissions occurring through the date hereof now existing in favor of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring officers and directors of SPAC prior to such amendment or repeal. The indemnification shall be payable solely from the assets consummation of the Company and no Member, Manager or Officer shall have any personal liability therefor.
(b) To Transactions will survive the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable to the Company or any Members for money damages. No amendment execution of this Agreement or repeal of any of and the Closing and will continue in full force and effect in accordance with their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers terms and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall will not be liable amended by SPAC to the Company eliminate or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement reduce such rights except to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed required by the Members and Managers to replace such other duties and liabilities of such Covered Personlaw.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
Appears in 1 contract
Indemnification and Exculpation. (a) The Company No Manager shall indemnify have any liability to the LLC or to any Member for any loss suffered by the LLC which arises out of any action or inaction of such Manager if such Manager determined in good faith that such course of conduct was (i) its Members, Managers and Officers to in accordance with the fullest extent permitted by law, including, without limitation, the advance of expenses under the procedures and to the fullest extent permitted by law, and (ii) other employees and agents of the Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of this Agreement or repeal of any (ii) in, or not opposed to, the best interests of the provisions thereof shall limit LLC, and, in either case, such course of conduct did not constitute gross negligence or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to willful misconduct of such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereforManager.
(b) To Subject to the fullest provisions of Section 6.09, each Manager and Member shall be subject to the fiduciary duties of care and loyalty to the full extent permitted by Georgia statutory that such duties would be imposed upon a director or decisional lawa stockholder, as amended or interpretedrespectively, no Member, Manager or Officer of a corporation organized and existing under the General Corporation Law of the Company shall be personally liable State of Delaware; provided that (i) to the Company or any Members for money damages. No amendment of this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to the Members, Managers and Officers hereunder with respect to any act or omission occurring prior to such amendment or repeal.
(c) No Member, Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that this Section 4.6(c) shall not exculpate a Covered Person from liability for any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement to , or any other agreement entered into between or among the extent that they LLC and one or more Members and/or Managers, restrict or modify the duties and liabilities of a Covered Person Member or a Manager otherwise existing at law or in equity, are agreed by such provisions shall supersede (to the Members and Managers to replace extent of such other restriction or modification) such duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interestsliabilities, and (ii) no Member or Manager shall have no duty any liability or obligation to give any consideration to any interest of or factors affecting the Company LLC or any other Member, Member or Manager for any action or omission permitted (iior which such Member or Manager believes in good faith is permitted) in its “good faith” or under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by terms of this Agreement or any other agreement contemplated entered into between or among the LLC and one or more Members and/or Managers.
(c) Each Manager shall be indemnified by the LLC against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by it with respect to actions taken by such Manager on behalf of the LLC, provided that no indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the good faith belief that his or her action was in, or not opposed to, the best interest of the LLC. Without limiting the foregoing, the Board of Managers may elect (on a case by case basis) to permit such indemnification to include payment by the LLC of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated not to be entitled to indemnification under this Section 6.08, which undertaking may be accepted without reference to the financial ability of such person to make repayment. Any indemnification to be provided hereunder may be provided although the person to be indemnified is no longer a Manager.
(d) Any indemnity under this Section 6.08 shall be paid from, and only to the extent of, LLC assets, and no Member shall have any personal liability on account thereof in the absence of a separate written agreement to the contrary. The LLC shall not incur the cost of that portion of any insurance, other than public liability insurance, which insures any party against any liability as to which such party is herein or by relevant provisions of law or in equity or otherwiseprohibited from being indemnified.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Cornerstone Brands Inc)
Indemnification and Exculpation. (a) The Company No Manager or officer shall indemnify (i) its Members, Managers and Officers have any liability to the fullest extent permitted LLC or to any Member for any loss suffered by law, including, without limitation, the advance LLC which arises out of expenses under any action or inaction of such Manager or officer if such Manager or officer determined in good faith that such course of conduct was in the procedures and to the fullest extent permitted by law, and (ii) other employees and agents best interests of the Company to LLC and such extent as shall be authorized by the Board course of Managers and is permitted by law. The foregoing rights of indemnification shall conduct did not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adoptconstitute gross negligence, approve and amend from time to time such resolutions willful misconduct or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment a breach of this Agreement or repeal of any of the provisions thereof shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to by such amendment or repeal. The indemnification shall be payable solely from the assets of the Company and no Member, Manager or Officer shall have any personal liability thereforofficer.
(b) To the fullest extent permitted by Georgia statutory or decisional law, as amended or interpreted, no Member, Manager or Officer of the Company shall be personally liable The Members' respective obligations to each other and to the Company or any Members for money damages. No amendment of LLC under this Agreement or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided are limited to the Membersexpress obligations expressly described in this Agreement, Managers which obligations the Members shall carry out with ordinary prudence and Officers hereunder in a manner characteristic of business persons in similar circumstances. Each Member and Manager may, with respect to any act vote, consent or omission occurring prior approval that it, he is entitled to grant pursuant to this Agreement, grant or withhold such vote, consent or approval in its, his or her sole and absolute discretion, with or without cause, and subject to such amendment conditions as it, he shall deem appropriate. The Members acknowledge and agree that the relationship among them as members of the LLC as specified in this Agreement is, to the maximum extent permissible under the Act, contractual in nature and not fiduciary. Accordingly, pursuant to Section 18-1101 of the Act, the Members agree that to the maximum extent permissible under the Act, each Member's fiduciary and any other similar duties and obligations to the LLC or repealany other Member (if any) shall be eliminated (or, if complete elimination of such duties and obligations is deemed to be not permissible under the Act, then reduced to the maximum extent permissible) hereby.
(c) No MemberEach Manager and officer shall be indemnified by the LLC against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by him with respect to actions taken by such Manager or Officer, nor their Affiliates, nor any of their respective officers, directors, shareholders, partners, employees, representatives or agents (each, a “Covered Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other Person who has an interest in the Company and is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith officer on behalf of the Company and LLC, provided that no indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in a manner reasonably believed any proceeding to be within the scope have been grossly negligent or to have acted with willful misconduct or in breach of the authority conferred on such Covered Person by this Agreement, except or in which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that this Section 4.6(chis action was in the best interest of the LLC. Without limiting the foregoing, the Board of Managers may elect (on a case by case basis) shall not exculpate to permit such indemnification to include payment by the LLC of expenses incurred in defending a Covered Person from liability for any such loss, damage civil or claim incurred by reason criminal action or proceeding in advance of the final disposition of such Covered Person’s willful misconductaction or proceeding, bad faith or gross negligence.
(d) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member, any such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions upon receipt of this Agreement. The provisions of this Agreement to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed an undertaking by the Members and Managers person indemnified to replace repay such other duties and liabilities of such Covered Person.
(e) Whenever in this Agreement a Member is permitted or required payment if he shall be adjudicated not to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Member, or (ii) in its “good faith” or indemnification under another express standard, the Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.this
Appears in 1 contract
Samples: Limited Liability Company Agreement (Casella Waste Systems Inc)
