Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board, by the stockholders of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. (c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
Appears in 9 contracts
Samples: Indemnification Agreement (Websidestory Inc), Indemnification Agreement (Websidestory Inc), Indemnification Agreement (Websidestory Inc)
Indemnification Process and Appeal. (a) To obtain 6.1 Indemnitee shall be entitled to indemnification under of Expenses, and shall receive payment thereof, from the Company in accordance with this AgreementAgreement as soon as practicable after Indemnitee has made written demand on the Company for indemnification, unless a Determination has been made that Indemnitee is not entitled to indemnification as provided in Section 4.1.
6.2 Regardless of any action by the Board or the Company, if Indemnitee has not received full indemnification of Losses within twenty days after making a written demand, Indemnitee shall submit have the right to enforce its rights under this Agreement by commencing litigation in any court in the Company a written request State of Florida or the State of Delaware having subject matter jurisdiction thereof seeking an initial determination by the court or challenging any Determination by the Board or any aspect thereof. The remedy provided for in this Section 6 shall be in addition to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably any other remedies available to Indemnitee and at law or in equity.
6.3 It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is reasonably necessary not permissible under applicable law for the Company to determine indemnify Indemnitee for the amount claimed. In connection with any such action or any Determination by the Board or otherwise as to whether and to what extent Indemnitee is entitled to indemnification. The Secretary be indemnified hereunder, the burden of the Company shall, promptly upon receipt of proving such a request for indemnification, advise defense or Determination shall be on the Board in writing that Indemnitee has requested indemnificationCompany.
(b) Upon written request by 6.4 The Company agrees to reimburse Indemnitee in full for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board, by the stockholders of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually Expenses incurred by Indemnitee in so cooperating connection with the personinvestigating, persons preparing for, litigating, defending or entity making such determination shall be borne settling any action brought by Indemnitee under Section 6.2 above, or in connection with any claim or counterclaim brought by the Company (irrespective in connection therewith.
6.5 The Company shall afford to the Indemnitee and the Indemnitee’s representatives ample opportunity to present evidence of the facts upon which the Indemnitee relies for indemnification or reimbursement, together with other information relating to any requested Determination. The Company shall also afford the Indemnitee the reasonable opportunity to include such evidence and information in any Company proxy statement relating to a stockholder Determination provided that the inclusion of such information does not violate applicable laws in the reasonable determination as to of the Company’s counsel.
6.6 If a Determination is made by the Board or a committee thereof that the Indemnitee did not meet the standard of conduct set forth in Section 3.1, 3.2 or 3.3 hereof, upon the written request of the Indemnitee's entitlement to indemnification) and , the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is shall cause a new Determination to be made by Independent Counsel pursuant to Section 4(b) hereof, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as ’s stockholders at the case may be, may, within ten (10) days after such written notice next regular or special meeting of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)stockholders.
Appears in 6 contracts
Samples: Indemnification Agreement (Elandia International Inc.), Indemnification Agreement (Elandia International Inc.), Indemnification Agreement (Elandia International Inc.)
Indemnification Process and Appeal. (a) Suit To obtain Enforce Rights. Regardless of any action by the Reviewing ---------------------- Party, if Indemnitee has not received full indemnification under this Agreementwithin 60 days after making a request in accordance with Section 2(c), Indemnitee shall submit have the right to the Company a written request to the Secretary of the Companyenforce its indemnification rights under this Agreement by commencing litigation, including therein or therewith such documentation in any appropriate court having subject matter jurisdiction thereof and information as in which venue is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shallproper, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed seeking an initial determination by the Board, court or challenging any determination by the stockholders of the Company (Reviewing Party or any such party referenced in (A)aspect thereof, (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may 60-day period shall be asserted only extended for reasonable time, not to exceed another 60 days, if the reviewing party in good faith requires additional time for the obtaining or evaluating of documentation and information relating thereto. The Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party not challenged by the Indemnitee shall be binding on the ground Company and Indemnitee. The remedy provided for in this Section 4 shall be in addition to any other remedies available to Indemnitee in law or equity.
(b) Defense To Indemnification, Burden Of Proof, And Presumptions. It ------------------------------------------------------------- shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Independent Counsel so selected does Indemnitee had not meet met such applicable standard of conduct, shall be a defense to the requirements action or create a presumption that the Indemnitee has not met the applicable standard of "Independent Counsel" as defined in Section 1 conduct. For purposes of this Agreement, and the objection termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent shall set forth with particularity the factual basis not create a presumption that Indemnitee did not meet any particular standard of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn conduct or have any particular belief or that a court has determined that such objection indemnification is without merit. If, within 20 days after submission not permitted by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)law.
Appears in 3 contracts
Samples: Indemnification Agreement (American Pharmaceutical Partners Inc /Ca/), Indemnification Agreement (Digimarc Corp), Indemnification Agreement (Agraquest Inc)
Indemnification Process and Appeal. (a) To obtain Suit to Enforce Rights. If a claim for indemnification under this Agreement, Indemnitee shall submit made to the Company pursuant to Section 4 hereof is not paid in full by the Company within 30 calendar days after a written request to the Secretary of claim has been received by the Company, including therein or therewith the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim in any court having subject matter jurisdiction thereof. The Company hereby consents to service of process and to appear in any such documentation and information as is reasonably proceeding. The remedy provided for in this Section 5 shall be in addition to any other remedies available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnificationlaw or equity.
(b) Upon written request by Indemnitee Defense to Indemnification, Burden of Proof and Presumptions. In any action brought under Section 5(a) hereof, it shall be a defense to a claim for indemnification pursuant to Sections 2(a) or 2(b) hereof (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the first sentence of Section 4(a) hereof, a determinationUndertaking, if required by applicable lawany is required, with respect has been tendered to Indemnitee's entitlement thereto the Company) that the Indemnitee has not met the standards of conduct which make it permissible under the GCL for the Company to indemnify the Indemnitee for the amount claimed, but the burden of proving such defense shall be made in on the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which Company. It shall be delivered a defense to Indemnitee; or (ii) if a Change any action brought by Indemnitee against the Company to enforce this Agreement that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed, but the burden of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no proving such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which defense shall be delivered to Indemnitee or (C) if so directed by on the Board, by Company. Neither the stockholders failure of the Company (any such party referenced in (A)including its Board, (Bindependent legal counsel or its stockholders) or (C) above is referred Independent Counsel to herein as have made a determination prior to the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after commencement of such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred action by Indemnitee that indemnification of the claimant is proper under the circumstances because he has met the standard of conduct set forth in so cooperating with the personapplicable law, persons or entity making such nor an actual determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnificationincluding its Board, independent legal counsel or its stockholders) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to be made by or Independent Counsel pursuant to Section 4(b) hereofthat Indemnitee had not met such applicable standard of conduct, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice defense to the Company advising it of the identity of the Independent Counsel so selected. In either event, action or create a presumption that Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does has not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to met the applicable standards standard of professional conduct then prevailing)conduct.
Appears in 3 contracts
Samples: Employment Agreement (SRS Labs Inc), Employment Agreement (SRS Labs Inc), Employment Agreement (SRS Labs Inc)
Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, Indemnification Payment. Indemnitee shall submit be entitled to indemnification of Expenses, and shall receive payment thereof, from the Company in accordance with this Agreement as soon as practicable after Indemnitee has made written demand on the Company for indemnification, unless the Reviewing Party has given a written opinion to the Company a written request to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent that Indemnitee is not entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnificationindemnification under applicable law.
(b) Upon written request Suit to Enforce Rights. Regardless of any action by the Reviewing Party, if Indemnitee for has not received full indemnification pursuant to the first sentence of within thirty days after making a demand in accordance with Section 4(a) hereof), a determination, if required Indemnitee shall have the right to enforce its indemnification rights under this Agreement by applicable law, with respect to Indemnitee's entitlement thereto shall be made commencing litigation in any court in the specific case: (i) if a Change State of California having subject matter jurisdiction thereof and in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed venue is proper seeking an initial determination by the Board, court or challenging any determination by the stockholders Reviewing Party or any aspect thereof. The Company hereby consents to service of the Company (process and to appear in any such party referenced in (A), (B) or (C) above is referred to herein as proceeding. Any determination by the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Party not challenged by the Indemnitee shall be made within ten (10) days after such determinationbinding on the Company and Indemnitee. Indemnitee The remedy provided for in this Section 4 shall cooperate with the person, persons or entity making such determination with respect be in addition to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably other remedies available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs in law or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefromequity.
(c) Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action or any determination by the event the determination of entitlement Reviewing Party or otherwise as to indemnification whether Indemnitee is entitled to be made by Independent Counsel pursuant to Section 4(b) hereofindemnified hereunder, the Independent Counsel burden of proving such a defense or determination shall be selected as provided in this Section 4(c)on the Company. If a Change Neither the failure of Control shall not have occurred, the Board shall select the Independent Counsel, and Reviewing Party or the Company shall give written notice (including its board, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action by Indemnitee advising him that indemnification of the identity claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Independent Counsel so selected. If a Change Reviewing Party of Control shall have occurredCompany (including it Board, independent counsel, or its shareholders) that the Independent Counsel Indemnitee had not met such applicable standard of conduct, shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice a defense to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee action or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, create a written objection to such selection; provided, however, that such objection may be asserted only on the ground presumption that the Independent Counsel so selected does Indemnitee has not meet met the requirements applicable standard of "Independent Counsel" as defined in Section 1 conduct. For purposes of this Agreement, and the objection termination of any claim, action, suit, or proceeding, by judgment, order settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall set forth with particularity the factual basis not create a presumption that Indemnitee did not meet any particular standard of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn conduct or have any particular belief or that a court has determined that such objection indemnification is without merit. If, within 20 days after submission not permitted by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)law.
Appears in 2 contracts
Samples: Indemnification Agreement (MATECH Corp.), Indemnification Agreement (Material Technologies Inc /Ca/)
Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company (following the final disposition of the applicable Proceeding) a written request to the Secretary of the Companyfor indemnification, including therein or therewith such documentation and information as is therewith, except to the extent previously provided to the Company in connection with a request or requests for advancement pursuant to Section 2(c), a statement or statements reasonably available to evidencing all Expenses incurred or paid by or on behalf of the Indemnitee and for which indemnification is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnificationrequested. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination3(a), if required by applicable lawlaw and to the extent not otherwise provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee's ’s entitlement thereto to indemnification shall be made in the specific casecase as follows: (i) if a Change in Control shall have occurredoccurred and if so requested in writing by the Indemnitee, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of this Section 3(b), (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy Board or (D) by the Company’s stockholders in accordance with applicable law. Notice in writing of which any determination as to the Indemnitee’s entitlement to indemnification shall be delivered to the Indemnitee or (C) promptly after such determination is made, and if so directed such determination of entitlement to indemnification has been made by Independent Counsel in a written opinion to the Board, then such notice shall be accompanied by the stockholders a copy of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if written opinion. If it is so determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall be made within ten twenty (1020) calendar days after such determinationdetermination and, in no event, not later than sixty (60) calendar days after the Indemnitee’s written request for indemnification. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which such determination is based. The Indemnitee shall cooperate with the person, persons or entity making such the determination with respect to the Indemnitee's ’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which that is not privileged or otherwise protected from disclosure and which that is reasonably available to the Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as determine whether and to what extent the Indemnitee is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof3(b), the Independent Counsel shall be selected as provided in this Section 4(c3(c). If a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of Section 3(b)), the Board shall select then the Independent CounselCounsel shall be selected by the Board, and the Company shall give written notice to the Indemnitee advising him the Indemnitee of the identity of the Independent Counsel so selected. If a Change of in Control shall have occurredoccurred and the Indemnitee shall have requested that indemnification be determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within ten (10) calendar days after such written notice of selection shall have has been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel law firm or person so selected does not meet the requirements of "“Independent Counsel" ” as defined in Section 1 of this Agreement1, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel law firm or person so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a the Delaware Chancery Court or another court of competent jurisdiction in the State of Delaware has determined that such objection is without merit. IfIf the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b) and, within 20 following the expiration of twenty (20) calendar days after submission by the Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof3(a), no Independent Counsel shall not have been selected selected, or an objection thereto has been made and not objected towithdrawn, then either the Company or the Indemnitee may petition any the Delaware Chancery Court or other court of competent jurisdiction in the State of Delaware for resolution of any objection which that shall have been made by the Company or the Indemnitee to the other's ’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a law firm or person selected by the such court (or selected by such other person as the court shall designate), and the law firm or person with respect to whom all objections are so resolved or the law firm or person so appointed shall act as Independent Counsel under Section 4(b) hereof3(b). The If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b), then the Company shall agrees to pay the reasonable fees and expenses of such Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all reasonable fees Expenses, claims, liabilities and Expenses damages arising out of Independent Counsel incurred by such Independent Counsel in connection with acting or relating to this Agreement or its engagement pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)hereto.
Appears in 1 contract
Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board, by the stockholders of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).the
Appears in 1 contract
Indemnification Process and Appeal. (a) a. To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company (following the final disposition of the applicable Proceeding) a written request to the Secretary of the Companyfor indemnification, including therein or therewith such documentation and information as is therewith, except to the extent previously provided to the Company in connection with a request or requests for advancement pursuant to Section 2(c), a statement or statements reasonably available to evidencing all Expenses incurred or paid by or on behalf of the Indemnitee and for which indemnification is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnificationrequested. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification.
(b) b. Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination3(a), if required by applicable lawlaw and to the extent not otherwise provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee's ’s entitlement thereto to indemnification shall be made in the specific casecase as follows: (i) if a Change in Control shall have occurredoccurred and if so requested in writing by the Indemnitee, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of this Section 3(b), (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy Board or (D) by the Company’s stockholders in accordance with applicable law. Notice in writing of which any determination as to the Indemnitee’s entitlement to indemnification shall be delivered to the Indemnitee or (C) promptly after such determination is made, and if so directed such determination of entitlement to indemnification has been made by Independent Counsel in a written opinion to the Board, then such notice shall be accompanied by the stockholders a copy of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if written opinion. If it is so determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall be made within ten twenty (1020) calendar days after such determinationdetermination and, in no event, not later than sixty (60) calendar days after the Indemnitee’s written request for indemnification. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which such determination is based. The Indemnitee shall cooperate with the person, persons or entity making such the determination with respect to the Indemnitee's ’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which that is not privileged or otherwise protected from disclosure and which that is reasonably available to the Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as determine whether and to what extent the Indemnitee is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event c. If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof3(b), the Independent Counsel shall be selected as provided in this Section 4(c3(c). If a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of Section 3(b)), the Board shall select then the Independent CounselCounsel shall be selected by the Board, and the Company shall give written notice to the Indemnitee advising him the Indemnitee of the identity of the Independent Counsel so selected. If a Change of in Control shall have occurredoccurred and the Indemnitee shall have requested that indemnification be determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within ten (10) calendar days after such written notice of selection shall have has been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel law firm or person so selected does not meet the requirements of "“Independent Counsel" ” as defined in Section 1 of this Agreement1, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made Absent a proper and substantiatedtimely objection, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed selected shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).as
Appears in 1 contract
Samples: Indemnification Agreement (FiscalNote Holdings, Inc.)
Indemnification Process and Appeal. (a) Suit To obtain Enforce Rights. Regardless of any action by the Reviewing Party, if Indemnitee has not received full indemnification under this Agreementwithin 60 days after making a request in accordance with Section 2(c), Indemnitee shall submit have the right to the Company a written request to the Secretary of the Companyenforce its indemnification rights under this Agreement by commencing litigation, including therein or therewith such documentation in any appropriate court having subject matter jurisdiction thereof and information as in which venue is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shallproper, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed seeking an initial determination by the Board, court or challenging any determination by the stockholders of the Company (Reviewing Party or any such party referenced in (A)aspect thereof, (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may 60-day period shall be asserted only extended for reasonable time, not to exceed another 60 days, if the reviewing party in good faith requires additional time for the obtaining or evaluating of documentation and information relating thereto. The Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party not challenged by the Indemnitee shall be binding on the ground Company and Indemnitee. The remedy provided for in this Section 4 shall be in addition to any other remedies available to Indemnitee in law or equity.
(b) Defense To Indemnification, Burden Of Proof, And Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on the Company. Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Independent Counsel so selected does Indemnitee had not meet met such applicable standard of conduct, shall be a defense to the requirements action or create a presumption that the Indemnitee has not met the applicable standard of "Independent Counsel" as defined in Section 1 conduct. For purposes of this Agreement, and the objection termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent shall set forth with particularity the factual basis not create a presumption that Indemnitee did not meet any particular standard of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn conduct or have any particular belief or that a court has determined that such objection indemnification is without merit. If, within 20 days after submission not permitted by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)law.
Appears in 1 contract
Indemnification Process and Appeal. (a) a. To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company (following the final disposition of the applicable Proceeding) a written request to the Secretary of the Companyfor indemnification, including therein or therewith such documentation and information as is therewith, except to the extent previously provided to the Company in connection with a request or requests for advancement pursuant to Section 2(c), a statement or statements reasonably available to evidencing all Expenses incurred or paid by or on behalf of the Indemnitee and for which indemnification is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnificationrequested. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification.
(b) b. Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination3(a), if required by applicable lawlaw and to the extent not otherwise provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee's ’s entitlement thereto to indemnification shall be made in the specific casecase as follows: (i) if a Change in Control shall have occurredoccurred and if so requested in writing by the Indemnitee, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of this Section 3(b), (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy Board or (D) by the Company’s stockholders in accordance with applicable law. Notice in writing of which any determination as to the Indemnitee’s entitlement to indemnification shall be delivered to the Indemnitee or (C) promptly after such determination is made, and if so directed such determination of entitlement to indemnification has been made by Independent Counsel in a written opinion to the Board, then such notice shall be accompanied by the stockholders a copy of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if written opinion. If it is so determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall be made within ten twenty (1020) calendar days after such determinationdetermination and, in no event, not later than sixty (60) calendar days after the Indemnitee’s written request for indemnification. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which such determination is based. The Indemnitee shall cooperate with the person, persons or entity making such the determination with respect to the Indemnitee's ’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which that is not privileged or otherwise protected from disclosure and which that is reasonably available to the Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as determine whether and to what extent the Indemnitee is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event c. If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof3(b), the Independent Counsel shall be selected as provided in this Section 4(c3(c). If a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of Section 3(b)), the Board shall select then the Independent CounselCounsel shall be selected by the Board, and the Company shall give written notice to the Indemnitee advising him the Indemnitee of the identity of the Independent Counsel so selected. If a Change of in Control shall have occurredoccurred and the Indemnitee shall have requested that indemnification be determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within ten (10) calendar days after such written notice of selection shall have has been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel law firm or person so selected does not meet the requirements of "“Independent Counsel" ” as defined in Section 1 of this Agreement1, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel law firm or person so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a the Delaware Chancery Court or another court of competent jurisdiction in the State of Delaware has determined that such objection is without merit. IfIf the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b) and, within 20 following the expiration of twenty (20) calendar days after submission by the Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof3(a), no Independent Counsel shall not have been selected selected, or an objection thereto has been made and not objected towithdrawn, then either the Company or the Indemnitee may petition any the Delaware Chancery Court or other court of competent jurisdiction in the State of Delaware for resolution of any objection which that shall have been made by the Company or the Indemnitee to the other's ’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a law firm or person selected by the such court (or selected by such other person as the court shall designate), and the law firm or person with respect to whom all objections are so resolved or the law firm or person so appointed shall act as Independent Counsel under Section 4(b) hereof3(b). The If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b), then the Company shall agrees to pay the reasonable fees and expenses of such Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all reasonable fees Expenses, claims, liabilities and Expenses damages arising out of Independent Counsel incurred by such Independent Counsel in connection with acting or relating to this Agreement or its engagement pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)hereto.
Appears in 1 contract
Samples: Indemnification Agreement (FiscalNote Holdings, Inc.)
Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, 10.4.1. An Indemnitee shall submit be entitled to indemnification and shall receive payment thereof from the Company a Corporation in accordance with this Article X as soon as practicable but in any event no later than 30 calendar days after such Indemnitee has made written request to demand on the Secretary of the Company, including therein or therewith Corporation for indemnification (which written demand shall include such documentation and information as is reasonably available to such Indemnitee and is reasonably necessary to determine whether and to what extent such Indemnitee is entitled to indemnification), unless the Independent Counsel has provided a written determination to the Corporation and such Indemnitee that indemnification is not permissible under applicable law.
10.4.2. The Secretary If (a) no determination as to whether indemnification is permissible under applicable law has been made within 30 calendar days after an Indemnitee has made a demand in accordance with Section 10.4.1, (b) payment of the Company shallindemnification pursuant to Section 10.4.1 is not made within 30 calendar days after a determination that indemnification is permissible under applicable law, promptly upon receipt (c) Independent Counsel determines pursuant to Section 10.4.1 that indemnification is not permissible under applicable law, or (d) an Indemnitee has not received payment of Expenses within 15 business days after making such a request in accordance with Section 10.2.3, then the applicable Indemnitee shall have the right to enforce its rights under this Article X by commencing litigation in any court of competent jurisdiction seeking an initial determination by the court or challenging any determination by the Independent Counsel or any aspect thereof. Any determination by the Independent Counsel not challenged by the applicable Indemnitee on or before the first anniversary of the date of the Independent Counsel’s determination shall be binding on the Corporation and such Indemnitee. The remedy provided for indemnification, advise the Board in writing that this Section 10.4 is non-exclusive and shall be in addition to any other remedies available to each Indemnitee has requested indemnificationin law or equity.
(b) Upon written request by Indemnitee for indemnification pursuant to 10.4.3. To the first sentence of Section 4(a) hereof, a determination, if required maximum extent permitted by applicable law, with respect to Indemnitee's entitlement thereto shall be made law in the specific case: (i) if making a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board, by the stockholders of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to whether indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereofpermissible, the Independent Counsel shall be selected as provided presume that indemnification is permissible if the applicable Indemnitee has submitted a request for indemnification in this accordance with Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel10.4.1, and the Company Corporation shall give written notice have the burden of proof to overcome that presumption in connection with the making by the Independent Counsel of any determination contrary to that presumption.
10.4.4. It shall be a defense to any action brought by any Indemnitee advising him against the Corporation to enforce this Article X (other than an action brought to enforce a claim for Expense Payment incurred in connection with a Proceeding in advance of its final disposition where the identity required undertaking has been tendered to the Corporation) that it is not permissible under applicable law for the Corporation to indemnify such Indemnitee for the amount claimed.
10.4.5. In connection with any action brought pursuant to Section 10.4.2 as to whether an Indemnitee is entitled to be indemnified hereunder, the Corporation must prove with clear and convincing evidence that such Indemnitee is not entitled to indemnification under this Article X. Neither the failure of the Independent Counsel so selected. If to have made a Change determination prior to the commencement of Control shall have occurredsuch action by such Indemnitee that indemnification is permissible under applicable law, nor an actual determination by the Independent Counsel that indemnification is not permissible under applicable law shall be selected admissible as evidence in any such action for any purpose. For purposes of this Article X, the termination of any claim, action, suit or proceeding, by Indemnitee judgment, order, settlement (unless Indemnitee whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall request not create a presumption that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does did not meet the requirements any particular standard of "Independent Counsel" as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn conduct or have any particular belief or that a court has determined that such objection indemnification is without meritnot permitted by applicable law.
10.4.6. If, within 20 days after submission For the purposes of any determination by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no the Independent Counsel under this Article X, an Indemnitee shall be deemed to have been selected acted in good faith and in a manner such Indemnitee reasonably believed to be in or not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee opposed to the other's selection best interests of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designateCorporation, and the person or, with respect to whom all objections are so resolved any criminal action or proceeding, to have had no reasonable cause to believe such Indemnitee’s conduct was unlawful, if such Indemnitee’s action is based on the person so appointed shall act as Independent Counsel under Section 4(b) hereofrecords or books of account of the Corporation or another enterprise, or on information supplied to such Indemnitee by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The Company term “another enterprise” as used in this Section 10.4.6 shall pay mean any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereofthe Corporation’s Affiliates or subsidiaries or any other corporation or any partnership, and joint venture, trust, employee benefit plan or other enterprise of which the Company shall pay all reasonable fees and Expenses incident to applicable Indemnitee is or was serving at the procedures request of the Corporation as a director, officer, employee or agent. The provisions of this Section 4(c), regardless of 10.4.6 shall not be deemed to be exclusive or to limit in any way the manner circumstances in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant Indemnitee may be deemed to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to have met the applicable standards standard of professional conduct then prevailing)set forth under Nevada law.
Appears in 1 contract
Indemnification Process and Appeal. (a) To obtain indemnification under this Agreement, A. Indemnification Payment. Indemnitee shall submit to receive indemnification of Expenses from the Company a in accordance with this Agreement as soon as practicable after Indemnitee has made written request to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of demand on the Company shall, promptly upon receipt of such a request for indemnification, advise unless the Board in writing that Indemnitee Reviewing Party has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in given a written opinion to the BoardCompany that Indemnitee is not entitled to indemnification under this Agreement or applicable law.
B. Suit To Enforce Rights. Regardless of any action by the Reviewing Party, if Indemnitee has not received full indemnification within 30 days after making a copy demand in accordance with Section 4(a), Indemnitee shall have the right to enforce its indemnification rights under this Agreement by commencing litigation in any court in the State of which Florida seeking an initial determination by the court or challenging any determination by the Reviewing Party or any aspect thereof. The Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party not challenged by Indemnitee shall be delivered binding on the Company and Indemnitee. The remedy provided for in this Section 4 shall be in addition to Indemnitee; any other remedies available to Indemnitee in law or equity.
C. Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (iiother than an action brought to enforce a claim for Expenses incurred in defending a proceeding in advance of its final disposition when the required undertaking has been tendered to the Company) if a Change of Control shall that it is not have occurredpermissible, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, under this Agreement or (B) if there are no such Disinterested Directors and, if required by applicable law, or, if for the Company to indemnify Indemnitee for the amount claimed. In connection with any such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee action or (C) if so directed any determination by the Board, by the stockholders of the Company (any such party referenced in (A), (B) Reviewing Party or (C) above is referred to herein as the "Reviewing Party"); and, if it is so determined that otherwise on whether Indemnitee is entitled to indemnificationbe indemnified under this Agreement, payment to Indemnitee shall be made within ten (10) days after the burden of proving such determination. Indemnitee shall cooperate with the person, persons a defense or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as is reasonably practicable, taking into account all facts and circumstanceson the Company. Any reasonable costs Neither the failure of the Reviewing Party or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective including its Board, independent legal counsel, or its shareholders) to have made a determination before the commencement of such action by Indemnitee that indemnification is proper under the circumstances because the Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination as to Indemnitee's entitlement to indemnification) and by the Reviewing Party or the Company hereby indemnifies and agrees to hold (including its Board, independent legal counsel, or its shareholders) that Indemnitee harmless therefrom.
(c) In the event the determination had not met such applicable standard of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereofconduct, the Independent Counsel shall be selected as provided in this Section 4(c). If a Change of Control shall not have occurred, the Board shall select the Independent Counsel, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice defense to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee action or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, create a written objection to such selection; provided, however, that such objection may be asserted only on the ground presumption that the Independent Counsel so selected does Indemnitee has not meet met the requirements applicable standard of "Independent Counsel" as defined in Section 1 conduct. For purposes of this Agreement, and the objection termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or on a plea of nolo contendere, or its equivalent, shall set forth with particularity the factual basis not create a presumption that Indemnitee did not meet any particular standard of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn conduct or have any particular belief or that a court has determined that such objection indemnification is without merit. If, within 20 days after submission not permitted by Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition any court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 4(b) hereof. The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereof, and the Company shall pay all reasonable fees and Expenses incident to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)law.
Appears in 1 contract
Samples: Indemnification Agreement (Penthouse International Inc)
Indemnification Process and Appeal. (a) a. To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company (following the final disposition of the applicable Proceeding) a written request to the Secretary of the Companyfor indemnification, including therein or therewith such documentation and information as is therewith, except to the extent previously provided to the Company in connection with a request or requests for Expense Advances pursuant to Section 2(c), a statement or statements reasonably available to evidencing all Expenses incurred or paid by or on behalf of the Indemnitee and for which indemnification is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnificationrequested. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification.
(b) b. Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 4(a) hereof, a determination3(a), if required by applicable lawlaw and to the extent not otherwise provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee's ’s entitlement thereto to indemnification shall be made in the specific casecase as follows: (i) if a Change in Control shall have occurredoccurred and if so requested in writing by the Indemnitee, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of this Section 3(b)), (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors and, if required by applicable law, or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy Board or (D) by the Company’s stockholders in accordance with applicable law. Notice in writing of which any determination as to the Indemnitee’s entitlement to indemnification shall be delivered to the Indemnitee or (C) promptly after such determination is made, and if so directed such determination of entitlement to indemnification has been made by Independent Counsel in a written opinion to the Board, then such notice shall be accompanied by the stockholders a copy of the Company (any such party referenced in (A), (B) or (C) above is referred to herein as the "Reviewing Party"); and, if written opinion. If it is so determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall be made within ten twenty (1020) calendar days after such determinationdetermination and, in no event, not later than sixty (60) calendar days after the Indemnitee’s written request for indemnification. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which such determination is based. The Indemnitee shall cooperate with the person, persons persons, or entity making such the determination with respect to the Indemnitee's ’s entitlement to indemnification, including providing to such person, persons persons, or entity upon reasonable advance request any documentation or information which that is not privileged or otherwise protected from disclosure and which that is reasonably available to the Indemnitee and reasonably necessary to such determination. Such determination shall be made as promptly as determine whether and to what extent the Indemnitee is reasonably practicable, taking into account all facts and circumstances. Any reasonable costs or expenses (including reasonable attorneys' fees and disbursements) actually incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event c. If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4(b) hereof3(b), the Independent Counsel shall be selected as provided in this Section 4(c3(c). If a Change of in Control shall not have occurredoccurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in clause (i) of Section 3(b)), the Board shall select then the Independent CounselCounsel shall be selected by the Board, and the Company shall give written notice to the Indemnitee advising him the Indemnitee of the identity of the Independent Counsel so selected. If a Change of in Control shall have occurredoccurred and the Indemnitee shall have requested that indemnification be determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within ten (10) calendar days after such written notice of selection shall have has been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel law firm or person so selected does not meet the requirements of "“Independent Counsel" ” as defined in Section 1 of this Agreement1, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel law firm or person so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a the Delaware Chancery Court or another court of competent jurisdiction in the State of Delaware has determined that such objection is without merit. IfIf the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b) and, within 20 following the expiration of twenty (20) calendar days after submission by the Indemnitee of a written request for indemnification pursuant to Section 4(a) hereof3(a), no Independent Counsel shall not have been selected selected, or an objection thereto has been made and not objected towithdrawn, then either the Company or the Indemnitee may petition any the Delaware Chancery Court or other court of competent jurisdiction in the State of Delaware for resolution of any objection which that shall have been made by the Company or the Indemnitee to the other's ’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a law firm or person selected by the such court (or selected by such other person as the court shall designate), and the law firm or person with respect to whom all objections are so resolved or the law firm or person so appointed shall act as Independent Counsel under Section 4(b) hereof3(b). The If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 3(b), then the Company shall agrees to pay the reasonable fees and expenses of such Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 4(b) hereofExpenses, claims, liabilities, and the Company shall pay all reasonable fees and Expenses incident damages arising out of or relating to the procedures of this Section 4(c), regardless of the manner in which such Independent Counsel was selected Agreement or appointed. Upon the due commencement of any judicial proceeding or arbitration its engagement pursuant to Section 4(d) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)hereto.
Appears in 1 contract
Samples: Indemnification Agreement (ConnectM Technology Solutions, Inc.)
