Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification. (b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17. (c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee. (d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. (e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company. (f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement. (g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. (i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted. (j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law. (k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 16 contracts
Samples: Limited Liability Company Agreement (U.S. Shipping Finance Corp.), Limited Liability Company Agreement (U.S. Shipping Finance Corp.), Limited Liability Company Agreement (U.S. Shipping Finance Corp.)
Indemnification. (a) To the fullest extent permitted by law but subject to law, the limitations expressly provided in this AgreementMember and the officers, each Indemnitee directors, employees and agents of the Company or the Member or an affiliate thereof (as defined belowindividually, an “Indemnitee”) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, judgments, liabilities, joint or severalobligations, penalties, settlements and reasonable expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts fees) arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such the Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification a Member of the Company or (ii) have any obligation to contribute an officer, director, employee or loan any monies or property to agent of the Company or the Member or an affiliate thereof, regardless of whether the Indemnitee continues to enable it be a Member or an officer, director, employee or agent of the Member or an affiliate thereof at the time any such liability or expense is paid or incurred, unless the act or failure to effectuate such indemnificationact giving rise to indemnity hereunder was performed or omitted fraudulently or constituted gross negligence or willful misconduct.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company Board, its Affiliates and such other Persons persons as the Company Board Member shall determine, including any officers, against any liability that may be asserted against or expense that may be incurred by such Person person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person person against such liability under the provisions of this Agreement.
(ec) For purposes of this Section 17, the Company shall be deemed to have requested an Expenses incurred by any Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to in defending any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction claim with respect to which such Indemnitee may be entitled to indemnification by the indemnification applies if Company hereunder (including without limitation reasonable attorneys’ fees and disbursements) shall, to the transaction was otherwise maximum extent permitted by law, be advanced by the terms Company prior to the final disposition of this Agreementsuch claim, upon receipt of a written undertaking by or on behalf of such Indemnitee to repay the advanced amount of such expenses unless it is determined ultimately that the Indemnitee is entitled to indemnification by the Company under Section 17(a).
(hd) The provisions of indemnification provided in this Section 17 are is for the benefit of the Indemnitees, their heirs, successors, assigns and administrators Indemnitees and shall not be deemed to create any rights right to indemnification for the benefit of any other Personspersons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 16 contracts
Samples: Limited Liability Company Agreement (Us Oncology Corporate Inc), Limited Liability Company Agreement (Us Oncology Corporate Inc), Limited Liability Company Agreement (Us Oncology Corporate Inc)
Indemnification. (a) To the fullest extent permitted by applicable law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.1 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by applicable law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.1.
(c) The indemnification provided by this Section 17 7.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)7.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.1 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No Any amendment, modification or repeal of this Section 17 7.1 or any provision hereof shall be prospective only and shall not in any manner way terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 7.1(A), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 7.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 14 contracts
Samples: Limited Liability Company Agreement (GIC Private LTD), Limited Liability Company Agreement (Enagas U.S.A. LLC), Limited Liability Company Agreement (Tallgrass Energy, LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee whether arising from acts or omissions to act occurring before or after the date of this Agreement; provided, provided that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 177.7, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationnegligence.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any an undertaking by or on behalf of the Indemnitee to repay such amount if it ultimately shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Voting Units entitled to vote on such matter, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteecapacity.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardPartnership and its Subsidiaries, the General Partner, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board General Partner shall determinedetermine in its sole discretion, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, (i) the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and (iii) any action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification. In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or or-in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If a claim for indemnification (following the final disposition of the action, suit or proceeding for which indemnification is being sought) or advancement of expenses under this Section 17 7.7 is not paid in full within thirty (30) days after a written claim therefor by any Indemnitee has been received by the Partnership, such Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or any portion hereof in part, shall be invalidated on any ground by any court entitled to be paid the expenses of competent jurisdictionprosecuting such claim, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to . In any proceeding, appeal, inquiry or investigation such action the Partnership shall have the burden of proving that such Indemnitee is not entitled to the full extent permitted by any applicable portion requested indemnification or advancement of this Section 17 that shall not have been invalidated and to the fullest extent permitted by expenses under applicable law.
(k) For purposes hereof, “Indemnitee” means (a) This Section 7.7 shall not limit the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee right of the CompanyPartnership, to the extent and in the manner permitted by law, to indemnify and to advance expenses to, and (c) any person who is or was serving at the request of the Company Board as a memberpurchase and maintain insurance on behalf of, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesPersons other than Indemnitees.
Appears in 13 contracts
Samples: Limited Partnership Agreement (Steel Partners Holdings L.P.), Limited Partnership Agreement (Steel Partners Holdings L.P.), Limited Partnership Agreement (Steel Partners Holdings L.P.)
Indemnification. (a) To The Trust hereby agrees to indemnify the fullest extent permitted by law but subject to Adviser and each of the limitations expressly Adviser’s partners, officers, employees, and agents (including any individual who serves at the Adviser’s request as director, officer, partner, trustee or the like of another entity) and controlling persons (each such person being an “Indemnitee”) against any liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees (all as provided in this Agreementaccordance with applicable state law) reasonably incurred by such Indemnitee in connection with the defense or disposition of any action, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, civil or criminal, before any court or administrative or investigative, investigative body in which such Indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwiseotherwise or with which such Indemnitee may be or may have been threatened, while acting in any capacity set forth above in this paragraph or thereafter by reason of its status as an such Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee ’s having acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it except with respect to any employee benefit plan matter as to which such Indemnitee shall have been adjudicated not to have acted in good faith in the performance of its duties for a purpose reasonably believed by it to be reasonable belief that such Indemnitee’s action was in the best interest of the participants Trust and beneficiaries furthermore, in the case of any criminal proceeding, so long as such Indemnitee had no reasonable cause to believe that the conduct was unlawful, provided, however, that (1) no Indemnitee shall be indemnified hereunder against any liability to the Trust or its shareholders or any expense of such Indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence (iv) reckless disregard of the plan duties involved in the conduct of his position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as “Disabling Conduct”), (2) as to any matter disposed of by settlement or a compromise payment by such Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be deemed to be for provided unless there has been a purpose which determination that such settlement or compromise is in, or not opposed to, in the best interests of the CompanyTrust and that such Indemnitee appears to have acted in good faith in the reasonable belief that his action was in the best interests of the Trust and did not involve Disabling Conduct by such Indemnitee and (3) with respect to any action, suit or other proceeding voluntarily prosecuted by any Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Indemnitee was authorized by a majority of the full Board of the Trust. Notwithstanding the foregoing, the Trust shall not be obligated to provide any such indemnification to the extent such provision would waive any right that the Trust cannot lawfully waive.
(fb) In no event may an Indemnitee subject The Trust shall make advance payments in connection with the Members to personal liability by reason expenses of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction defending any action with respect to which the indemnification applies might be sought hereunder if the transaction was otherwise permitted Trust receives a written affirmation of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to reimburse the Trust unless it is subsequently determined that such Indemnitee is entitled to such indemnification and if the Trustees of the Trust determine that the facts then known to them would not preclude indemnification. In addition, at least one of the following conditions must be met: (1) the Indemnitee shall provide adequate security for such Indemnitee’s undertaking, (2) the Trust shall be insured against losses arising by reason of any lawful advances, or (3) a majority of a quorum of Trustees of the terms Trust who are neither “interested persons” of this Agreementthe Trust (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to the proceeding (“Disinterested Non-Party Trustees”) or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the Indemnitee ultimately will be found entitled to indemnification.
(hc) The provisions All determinations with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body of this Section 17 are for competent jurisdiction before whom the benefit proceeding was brought that such Indemnitee is not liable or is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of the IndemniteesDisinterested Non-Party Trustees of the Trust, their heirsor (ii) if such a quorum is not obtainable or even if obtainable, successorsif a majority vote of such quorum so directs, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Personsindependent legal counsel in a written opinion.
(id) No amendmentEach Indemnitee shall, modification or repeal in the performance of this Section 17 its duties, be fully and completely justified and protected with regard to any act or any provision hereof shall failure to act resulting from reliance in good faith upon the books of account or other records of the Trust, upon an opinion of counsel, or upon reports made to the Trust by any manner terminateof the Trust’s officers or employees or by any advisor, reduce administrator, manager, distributor, selected dealer, accountant, appraiser or impair the right of any past, present other expert or future Indemnitee to be indemnified consultant selected with reasonable care by the CompanyTrustees, nor the obligations officers or employees of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repealTrust, regardless of when whether such claims counsel or other person may arise or also be asserteda Trustee.
(je) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect The rights accruing to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that Indemnitee under these provisions shall not have been invalidated and exclude any other right to the fullest extent permitted by applicable lawwhich he may be lawfully entitled.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 11 contracts
Samples: Investment Advisory and Administrative Services Agreement (Nexpoint Event-Driven Fund), Investment Advisory and Administrative Services Agreement (Nexpoint Opportunistic Credit Fund), Investment Advisory and Administrative Services Agreement (Nexpoint Opportunistic Credit Fund)
Indemnification. (a) To the fullest extent permitted by applicable law but subject each Covered Person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the limitations expressly provided in this Agreementfact that he, each Indemnitee she or it is or was a Covered Person or, while a Covered Person, is or was serving at the request of the Company or any parent or subsidiary of the Company as a director, officer, employee, partner, member, manager, trustee, fiduciary or agent of another limited liability company or of a partnership, joint venture, corporation, trust or other entity or enterprise, including service with respect to an employee benefit plan (as defined belowan “Indemnitee”) shall be indemnified and held harmless by the Company from to the fullest extent authorized by the Act, as the same exists or may hereafter be amended, against all expense, liability and against any and all losses, claims, damages, liabilities, joint or several, expenses loss (including legal attorneys’ fees and expenses)costs, judgments, fines, penalties, interest, settlements excise taxes or other penalties and amounts arising from any and all claims, demands, actions, suits paid in settlement) reasonably incurred or proceedings, whether civil, criminal, administrative or investigative, in which suffered by such Indemnitee may in connection therewith. Such indemnification shall continue as to an Indemnitee who has ceased to be involveda director, officer, employee, partner, member, manager, fiduciary, agent, or is threatened Covered Person, and shall inure to be involvedthe benefit of the Indemnitee’s heirs, as a party or otherwise, by reason of its status as an Indemniteeexecutors and administrators; provided, that however, that, except with respect to Proceedings to enforce rights to indemnification or advance of expenses, the Indemnitee Company shall not be indemnified and held harmless if there has been indemnify any such Indemnitee in connection with a final and non-appealable judgment entered Proceeding (or part thereof) initiated by a court of competent jurisdiction determining that, in respect of the matter for which the such Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property except to the Company to enable it to effectuate extent such indemnificationProceeding (or part thereof) was authorized in writing by the Majority Members.
(b) To the fullest extent permitted by applicable law, expenses (including reasonable legal fees and expensesfees) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in a Covered Person defending any claim, demand, action, suit or proceeding Proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding Proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee Covered Person to repay such amount if it shall be determined by final judicial decision from which there is no further right to appeal that the Indemnitee Covered Person is not entitled to be indemnified as authorized in this Section 175.2.
(c) The indemnification provided by this Section 17 A Covered Person shall be fully protected in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of relying in good faith upon the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf records of the Company Boardand upon such information, its Affiliates and opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities professional or expert competence and who has been selected by or on behalf of the Company, regardless including information, opinions, reports or statements as to the value and amount of whether the Company would have assets, liabilities, or any other facts pertinent to the power existence and amount of assets from which distributions to indemnify such Person against such liability under the provisions Member might properly be paid.
(d) Section 3.2 and this Article V shall survive any termination of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 11 contracts
Samples: Limited Liability Company Agreement (Ub Fuel Cell, LLC), Limited Liability Company Agreement (Ub Fuel Cell, LLC), Limited Liability Company Agreement (Ub Fuel Cell, LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this AgreementAgreement or in any Bylaws of the Company, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, whether or not by or in the right of the Company, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, in connection with any act or omission performed, or omitted to be performed, by such Indemnitee in good faith on behalf of or with respect to the Company or by reason of its status as an Indemnitee; provided, provided that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 1710.1, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) 10.1 in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 1710.1.
(c) The indemnification provided by indemnification, advancement of expenses and other provisions of this Section 17 10.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Shares entitled to vote on such matter, pursuant to a vote of the Board of Directors, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Boardits Directors and Officers, its Affiliates and such other Persons as the Company Board of Directors shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this AgreementAgreement or otherwise.
(e) For purposes of this the definition of Indemnitee in Section 171.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it such Indemnitee of its his or her duties to the Company also imposes duties on, or otherwise involves services by, it such Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of this Section 17(a)10.1; and action taken or omitted by it such Indemnitee with respect to any employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it him or her to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Any indemnification pursuant to personal liability by reason this Section 10.1 shall be made only out of the assets of the Company, it being agreed that the Shareholders shall not be personally liable for such indemnification provisions set forth in this Agreementand shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 10.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this AgreementAgreement or applicable law.
(h) The indemnification, advancement of expenses and other provisions of this Section 17 10.1 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 10.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 10.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof The Company shall be invalidated on any ground by any court have the power, with the approval of competent jurisdictionthe Board of Directors, then to provide such indemnification and advancement of expenses to a person who served a predecessor of the Company shall nevertheless indemnify in any of the capacities described above and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry employee or investigation to agent of the full extent permitted by any applicable portion Company or a predecessor of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawCompany.
(k) For purposes hereofThe provisions of this Article X shall be applicable to all claims, “Indemnitee” means (a) demands, actions, suits or proceedings made or commenced after the Company Board, (b) any person who is adoption thereof whether arising from acts or was a Manager, Officer, employee, agent omissions to act occurring before or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesafter its adoption.
Appears in 10 contracts
Samples: Limited Liability Company Agreement (Travelcenters of America LLC), Limited Liability Company Agreement (Travelcenters of America LLC), Limited Liability Company Agreement (Travelcenters of America LLC)
Indemnification. (a) To The Company shall indemnify the Indemnitee and advance Expenses to the Indemnitee as provided in this Agreement to the fullest extent permitted by law but subject to the limitations expressly provided Certificate, the Bylaws in this Agreement, each Indemnitee (effect as defined below) shall be indemnified of the date hereof and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements DGCL or other amounts arising from applicable law in effect on the date hereof and to any and all claimsgreater extent that the Bylaws, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involvedthe DGCL, or is threatened applicable law may in the future from time to be involvedtime permit. Without diminishing the scope of the indemnification provided by this Section 3, as a party or otherwise, by reason the rights of its status as an Indemnitee; provided, that indemnification of the Indemnitee provided hereunder shall include, but shall not be indemnified and held harmless if there has been limited to, those rights hereinafter set forth, except that no indemnification shall be paid hereunder to the Indemnitee:
(a) on account of conduct of the Indemnitee which is adjudged in a final and non-appealable judgment entered adjudication by a court of competent jurisdiction determining thatfrom which there is no further right of appeal or in a final adjudication of an arbitration pursuant to Section 12 hereof, in respect of the matter for which if the Indemnitee is seeking indemnification pursuant elects to this Section 17seek such arbitration, the Indemnitee acted to have been knowingly fraudulent or to constitute conduct not in bad faith good faith, or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was to have been knowingly unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.;
(b) To the fullest extent permitted in any circumstance where such indemnification is expressly prohibited by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) applicable law in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf effect as of the Indemnitee to repay such amount if it shall be date of this Agreement or subsequently determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.expressly prohibited by applicable law;
(c) The indemnification provided by this Section 17 shall be in addition with respect to any other rights to liability for which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure payment is actually made to the benefit Indemnitee under an insurance policy or under an indemnity clause, Bylaws provision or other agreement (other than this Agreement), except in respect of the heirsany liability in excess of payment under such insurance, successorsclause, assigns and administrators of the Indemnitee.Bylaws provision or other agreement; or
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred if a final decision by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan a court having jurisdiction in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan matter shall be deemed to be for a purpose which determine that such indemnification is in, or not opposed to, the best interests of the Companylawful.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 10 contracts
Samples: Indemnification Agreement (Oasis Petroleum Inc.), Indemnification Agreement (Oasis Petroleum Inc.), Indemnification Agreement (Oasis Petroleum Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 9 contracts
Samples: Contribution Agreement (Southcross Energy Partners, L.P.), Contribution Agreement (American Midstream Partners, LP), Limited Partnership Agreement (American Midstream Partners, LP)
Indemnification. (a) To a. In the fullest extent permitted by law but subject event Employee was, is or becomes a party to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements witness or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involvedparticipant in, or is threatened to be involved, as made a party to or otherwisewitness or other participant in, any action, suit or proceeding by reason of its status as his being or having been an Indemnitee; providedofficer of the Company, then the Company shall indemnify Employee against expenses reasonably incurred and/or liability incurred in connection with any such action, suit or proceeding, and advance expenses to Employee, to the fullest extent permitted by the Company’s Articles of Incorporation and bylaws now in effect, by the common law, by the General Corporation Law of the State of Maryland (the “GCLM”) or other applicable law in effect on the date hereof, and to any greater extent that the Indemnitee GCLM or applicable law may in the future from time to time permit. Employee shall not be indemnified as soon as practicable but in any event no later than forty-five (45) days after written demand is presented to the Company by Employee, and held harmless any indemnified amount shall include any and all expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, judgments, fines, penalties or amounts paid in settlement) of such action, suit or proceeding for which Employee presents valid invoices and/or receipts. If so requested by Employee, the Company shall advance to Employee, within five (5) business days of such request, reasonable expenses (an “Expense Advance”) incurred in defending any action, suit or proceeding, provided that Employee shall provide valid invoices and/or receipts for such expenses to be advanced, and further provided that Employee shall execute and deliver to the Company an undertaking that Employee shall repay to the Company any Expense Advance if there has been a final and non-appealable judgment entered it shall ultimately be determined by a court of competent jurisdiction determining thatthat Employee is not entitled to be indemnified.
i. Upon written demand or other request by Employee for indemnification hereunder, Employee shall be entitled to such indemnification unless (A) Employee did not act in respect good faith in a manner that was reasonable and in the best interests of the Company; (B) Employee’s act or omission was material to the matter for which giving rise to the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted liability and was committed in bad faith or engaged was the result of active or deliberate dishonesty; (C) Employee actually received an improper personal benefit in fraudmoney, willful misconduct property or gross negligence or, services; or (D) in the case of a criminal matterproceeding, acted with knowledge that Employee had reasonable cause to believe the Indemnitee’s conduct act or omission was unlawful; .
ii. In the event of a settlement before or after any action or suit, indemnification pursuant to this Section 17 shall be made provided only out in connection with such matters covered by settlement as to which the Company is advised by the Reviewing Party (as defined below) that Employee was not guilty of such fraud or misconduct as is covered by the assets provisions of the Company, it being agreed that no Member Section 4.4 b.i. above.
iii. Employee shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property not consent to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending settlement of any claim, demand, action, suit or proceeding shall, from time to time, be advanced by involving his role as an officer of the Company prior without first obtaining the Company’s written consent, and the Company shall not be liable to the final disposition indemnify Employee for any amounts paid in settlement of such claim, demand, any action, suit or proceeding upon affected without its written consent, which consent shall not be unreasonably withheld. The Company shall not be required to obtain the consent of Employee to settle any action, suit or proceeding that the Company has undertaken to defend if the Company assumes full and sole responsibility for such settlement and such settlement grants Employee a complete and unqualified release in respect of any potential liability.
c. Promptly after receipt by Employee of notice of the commencement of any action, suit or proceeding, Employee will, if a claim in respect thereof is to be made against the Company under this Section 4.4, notify the Company in writing of the commencement thereof. The omission by Employee to so notify the Company will not relieve the Company from any liability that it may have to Employee under this Section 4.4 or otherwise, except to the extent that the Company may suffer material prejudice by reason of such failure. Notwithstanding any other provision of this Section 4.4, with respect to any such action, suit or proceeding as to which Employee gives notice to the Company of the commencement thereof:
i. The Company will be entitled to participate therein at its own expense.
ii. Except as otherwise provided in this Section 4.4, to the extent that it may wish, the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof with counsel reasonably satisfactory to Employee. After notice from the Company to Employee of its election to so assume the defense thereof, the Company shall not be liable to Employee under this Agreement for any legal or other expenses subsequently incurred by Employee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Employee shall have the right to employ Employee’s own counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Employee unless (A) the employment of counsel by Employee and payment for same by the Company has been authorized by the Company; (B) Employee shall have reasonably concluded that there may be a conflict of interest between the Company and Employee in the conduct of the defense of such action and such determination by Employee shall be supported by an opinion of counsel, which opinion shall be reasonably acceptable to the Company; or (C) the Company shall not in fact have employed counsel to assume the defense of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any undertaking action, suit or proceeding brought by or on behalf of the Indemnitee Company or as to repay such amount if it which Employee shall be determined have reached the conclusion provided for in clause (B) above.
d. If the Company advances Expense Advances or other funds for indemnification pursuant to this Section, and, subsequently, indemnification pursuant to this Section is declared unenforceable by a court of competent jurisdiction, or an independent third party, paid by the Company, that is reviewing the Indemnitee indemnification set forth herein (the “Reviewing Party”) reasonably determines that Employee is not entitled to be indemnified as authorized in indemnification pursuant to this Section 17Section, then Employee shall have the right to retain the indemnification payments until all appeals of the court’s or the Reviewing Party’s decision have been exhausted.
(c) The indemnification provided by this Section 17 e. This Agreement shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee binding upon and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of and be enforceable by the heirsParties hereto and their respective successors or assigns, successorsincluding any direct or indirect successor by purchase, assigns and administrators merger, consolidation or otherwise to all or substantially all of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Section 4.4 shall continue in effect regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee Employee continues to serve as fiduciary an officer or director of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by enterprise at the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted’s request.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 9 contracts
Samples: Employment Agreement (Double Eagle Petroleum Co), Employment Agreement (Double Eagle Petroleum Co), Employment Agreement (Double Eagle Petroleum Co)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that in each case the Indemnitee acted in good faith and in a manner that such Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful; provided, further, however, no indemnification pursuant to this Article VI shall be available to Peabody or its Affiliates with respect to their obligations incurred pursuant to the Purchase Agreement or the other agreements and transactions contemplated thereby. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not be indemnified and held harmless if there has been create a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which presumption that the Indemnitee is seeking acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 6.01 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.01.
(c) The indemnification provided by this Section 17 6.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company BoardCompany, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 176.01, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a6.01(a); and action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 6.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 6.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 8 contracts
Samples: Limited Liability Company Agreement (Penn Virginia Resource Partners L P), Merger Agreement (Penn Virginia GP Holdings, L.P.), Limited Liability Company Agreement (Penn Virginia GP Holdings, L.P.)
Indemnification. (a) To the fullest extent permitted by law but subject Subject to the limitations expressly provided set forth herein and in this AgreementSection 7 hereof, each the Company hereby agrees to indemnify Indemnitee as follows: The Company shall, with respect to any Proceeding (as defined belowhereinafter defined) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted associated with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets being an Agent of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an indemnify Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) law and the Certificate of Incorporation of the Company Boardin effect on the date hereof or as such law or Certificate of Incorporation may from time to time be amended (but, (b) in the case of any person who such amendment, only to the extent such amendment permits the Company to provide broader indemnification rights than the law or Certificate of Incorporation permitted the Company to provide before such amendment). The right to indemnification conferred herein and in the Certificate of Incorporation shall be presumed to have been relied upon by Indemnitee in serving or continuing to serve the Company as an Agent and shall be enforceable as a contract right. Without in any way diminishing the scope of the indemnification provided by this Section 2, the Company will indemnify Indemnitee to the full extent permitted by law if and wherever Indemnitee is or was a Managerparty or is threatened to be made a party to any Proceeding, Officer, employee, agent including any Proceeding brought by or trustee in the right of the Company, and (c) any person who by reason of the fact that Indemnitee is or was serving at the request an Agent or by reason of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary anything done or trustee of another person, in each case, acting not done by Indemnitee in such capacity, providedagainst Expenses (as hereinafter defined) and Liabilities (as hereinafter defined) actually and reasonably incurred by Indemnitee or on his or her behalf in connection with the investigation, that defense, settlement or appeal of such Proceeding. In addition to, and not as a person limitation of, the foregoing, the rights of indemnification of Indemnitee provided under this Agreement shall not include those rights set forth in Sections 3 and 9 below. Notwithstanding the foregoing, the Company shall be an required to indemnify Indemnitee in connection with a Proceeding commenced by reason Indemnitee (other than a Proceeding commenced by Indemnitee to enforce Indemnitee’s rights under this Agreement) only if the commencement of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicessuch Proceeding was authorized by the Board of Directors.
Appears in 8 contracts
Samples: Indemnification Agreement, Indemnification Agreement (Cereplast Inc), Employment Agreement (Biolase Technology Inc)
Indemnification. Grantee shall indemnify, save, and hold harmless the City, its council members, officers, agents, and employees (acollectively, the “indemnitees”) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses against” (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from i) any and all claims, demands, actionsactions or causes of action that are asserted against any indemnitee if the claim, suits demand, action or proceedings, whether civil, criminal, administrative cause of action is a result of Grantee’s tortious interference with contract or investigative, in which such Indemnitee may be involvedbusiness interference, or is threatened Grantee’s wrongful or negligent use of the City’s financial assistance by Grantee or its agents and employees; (ii) any claim, demand, action or cause of action which contests or challenges the legal authority of Grantee to be involvedenter into this Agreement; and (iii) any and all liabilities, losses, costs, or expenses (including reasonable attorneys’ fees and disbursements) that any indemnitee suffers or incurs as a party or otherwise, by reason result of its status as an Indemniteeany of the foregoing; provided, however, that Grantee shall have no obligation under this Section to the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in City with respect to any of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only foregoing arising out of the assets gross negligence or willful misconduct of any indemnitee or the Companybreach by the City of this Agreement. If any claim, it being agreed demand, action or cause of action is asserted against any indemnitee, such indemnitee shall promptly notify Grantee, and failure to so promptly notify Grantee shall release Grantee’s obligations under this Section if such failure prejudices Grantee’s right to participate in the contest of such claim, demand, action or cause of action, as hereinafter provided. If requested by Grantee in writing, as so long as not Default or Event of Default shall have occurred and be continuing, such indemnitee shall in good faith contest the validity, applicability and amount of such claim, demand, action or cause of action and shall permit Grantee to participate in such contest. Any indemnitee that no Member shall (i) be personally liable for such indemnification proposes to settle or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending compromise any claim, demand, action, suit cause of action or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to for which an Indemnitee Grantee may be entitled under any agreement, pursuant to any vote liable for payment of the Members, as a matter indemnity hereunder shall give Grantee written notice of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions such proposed settlement or compromise reasonably in advance of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators settling or compromising such claim or proceeding and shall not be deemed to create any rights for the benefit of any other Personsobtain Grantee’s concurrence thereto.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 8 contracts
Samples: Economic Development Agreement, Economic Development Agreement, Chapter 380 Economic Development Agreement
Indemnification. Each Borrower and Guarantor shall, jointly and severally, indemnify and hold Agent and each Lender, and its officers, directors, agents, employees, advisors and counsel and their respective Affiliates (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementeach such person being an “Indemnitee”), each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint costs or several, expenses (including legal attorneys’ fees and expenses)) imposed on, judgmentsincurred by or asserted against any of them in connection with any litigation, finesinvestigation, penaltiesclaim or proceeding commenced or threatened related to the negotiation, interestpreparation, settlements execution, delivery, enforcement, performance or administration of this Agreement, any other Financing Agreements, or any undertaking or proceeding related to any of the transactions contemplated hereby or any act, omission, event or transaction related or attendant thereto, including amounts arising paid in settlement, court costs, and the fees and expenses of counsel except that Borrowers and Guarantors shall not have any obligation under this Section 11.5 to indemnify an Indemnitee with respect to a matter covered hereby resulting from any and all claims, demands, actions, suits the gross negligence or proceedings, whether civil, criminal, administrative or investigative, in which willful misconduct of such Indemnitee may be involvedas determined pursuant to a final, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by order of a court of competent jurisdiction determining that, in respect (but without limiting the obligations of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith Borrowers or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified Guarantors as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights Indemnitee). To the extent that the undertaking to which an Indemnitee may be entitled under any agreementindemnify, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee pay and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions hold harmless set forth in this Agreement.
(g) An Indemnitee Section may be unenforceable because it violates any law or public policy, Borrowers and Guarantors shall not be denied indemnification pay the maximum portion which it is permitted to pay under applicable law to Agent and Lenders in whole or in part satisfaction of indemnified matters under this Section 17 because Section. To the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
, no Borrower or Guarantor shall assert, and each Borrower and Guarantor hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (kas opposed to direct or actual damages) For purposes hereofarising out of, “Indemnitee” means (a) the Company Boardin connection with, (b) or as a result of, this Agreement, any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) other Financing Agreements or any person who is undertaking or was serving at transaction contemplated hereby. All amounts due under this Section shall be payable upon demand. The foregoing indemnity shall survive the request payment of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary Obligations and the termination or trustee non-renewal of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesthis Agreement.
Appears in 8 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Indemnification. (a) To the fullest extent permitted by law the Act but subject to the limitations expressly provided in this Agreement, each Indemnitee the Member, the Manager and any officer of the Company (as defined belowsuch, an “Indemnitee”) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee whether arising from acts or omissions to act occurring before or after the date of this Agreement; provided, provided that the Indemnitee shall not be indemnified and held harmless if there has been for any act or omission resulting from fraud, gross negligence, willful breach of this Agreement or a willful illegal act (other than an act or omission treated as a criminal violation in a foreign country that is not a criminal violation in the United States) of or by such Indemnitee. The right to indemnification conferred in this subsection (a) shall include the right to be paid or reimbursed by the Company the reasonable expenses incurred of the type entitled to be indemnified hereunder in advance of the final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect disposition of the matter for which the Indemnitee is seeking and without any determination as to ultimate entitlement to indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking an undertaking, by or on behalf of the Indemnitee such person, to repay such amount all amounts so advanced if it shall ultimately be determined that the such Indemnitee is not entitled to be indemnified under this provision or otherwise. Notwithstanding any other provision of this Agreement and except as authorized in may otherwise be agreed by the Manager or required by the Act, an Indemnitee shall not be entitled to indemnification or advancement of expenses under this Section 1713 with respect to any action, suit or proceeding (or part thereof) initiated by such Indemnitee (other than an action, suit or proceeding (or part thereof) by such Indemnitee (i) to enforce such Indemnitee’s rights under this Agreement or (ii) to enforce any other rights of such Indemnitee to indemnification, advancement or contribution from the Company under any other contract, agreement, directors’ and officers’ liability insurance policy or by law, including any rights under the Act), unless the initiation of such action, suit or proceeding (or part thereof) or making of such claim shall have been approved by the Manager in its sole discretion. In addition, notwithstanding any other provision of this Agreement to the contrary, any Indemnitee that is an officer of the Company shall not be entitled to indemnification hereunder if Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company.
(cb) The indemnification provided by this Section 17 13 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, agreement as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteecapacity.
(dc) The Company may purchase and maintain (or reimburse Shipping Master the Manager or its Affiliates affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates Indemnitees and such other Persons persons as the Company Board Manager shall determinedetermine in its sole discretion, against any liability that may be asserted against against, or expense that may be incurred by by, such Person person in connection with the Company’s activities or such Personperson’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person person against such liability under the provisions of this Agreement.
(ed) For purposes of Any indemnification pursuant to this Section 17, the Company 13 shall be deemed made only out of the assets of the Company, it being agreed that neither the Manager nor the Member shall be personally liable for such indemnification and shall have no obligation to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties contribute or loan any monies or property to the Company also imposes duties on, or otherwise involves services by, to enable it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) effectuate such indemnification. In no event may an Indemnitee subject the Members Manager or the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(ge) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 13 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hf) The provisions of this Section 17 13 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Personspersons.
(g) If a claim for indemnification (following the final disposition of the action, suit or proceeding for which indemnification is being sought) or advancement of expenses under this Section 13 is not paid in full within thirty (30) days after a written claim therefor by any Indemnitee has been received by the Company, such Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim, including reasonable attorneys’ fees. In any such action the Company shall have the burden of proving that such Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable law.
(h) This Section 13 shall not limit the right of the Company, to the extent and in the manner permitted by law, to indemnify and to advance expenses to, and purchase and maintain insurance on behalf of, persons other than Indemnitees.
(i) No amendment, modification or repeal of this Section 17 13 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 13 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 7 contracts
Samples: Limited Liability Company Agreement (Enviva Materials, LLC), Limited Liability Company Agreement (Enviva Materials, LLC), Limited Liability Company Agreement (Enviva Materials, LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 175.10, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 5.10 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a5.10(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 5.10, demand, action, suit or proceeding that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 175.10.
(c) The indemnification provided by this Section 17 5.10 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the Sole Member or its Affiliates for the cost of) insurance, on behalf of the Company BoardDirectors, the Officers, the Sole Member, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board Sole Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 175.10, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a5.10(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 5.10 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 5.10 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof 5.10 shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 5.10 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 7 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Rice Midstream Partners LP), Limited Liability Company Agreement (Rice Midstream Partners LP)
Indemnification. (a) To The Company shall indemnify, defend and hold harmless the fullest extent permitted by law but subject to Manager, and its respective officers, directors, partners, members, employees and Affiliates thereof, any other person who serves at the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by request of the Manager on behalf of the Company from and as an officer, advisor, director, member or employee of any other Entity (each such person an “Indemnitee”) against any and all lossesloss, claimsexpense, damagesdamage, liabilitiesclaim, joint liability, obligation, judgment or severalinjury, expenses (including legal fees and expenses)any judgment, judgmentsaward, settlement, fines, penalties, interestreasonable attorney’s fees and other costs or expenses (collectively, settlements “Losses”) incurred, suffered or other amounts arising from sustained by any and all claimsof them in connection with the defense of any actual or threatened, demands, actions, suits civil or proceedings, whether civil, criminal, administrative action, proceeding or investigativeclaim (each, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, an “Action”) by reason of its status any act, omission or alleged act or omission by them arising out of their respective activities on behalf of the Company or in furtherance of the interests of the Company, all of which shall be charged to and paid by the Company as an Indemniteeincurred; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining however, that, the acts, omissions or alleged acts or omissions upon which such Action is based were performed or omitted in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17good faith and were not fraudulent, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter result of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee wanton and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and willful misconduct. The foregoing right of indemnification shall inure to the benefit of the heirsexecutors, successorsadministrators, personal representative, successors or assigns of each such Indemnitee and administrators shall continue regardless of whether such Indemnitee remains in the position or capacity pursuant to which such Indemnitee became entitled to indemnification under this Section 4.5.
(b) The Company shall pay the expenses incurred by any Indemnitee in defending an Action or in opposing any claim arising in connection with any potential or threatened Action in advance of the Indemniteefinal disposition of such Action, upon receipt of a written undertaking by such Indemnitee to repay such payment if such Indemnitee shall be ultimately determined not to be entitled to indemnification therefor as provided herein.
(c) The Manager shall use commercially reasonable efforts to obtain the funds needed to satisfy the Company’s indemnification obligations under this Section 4.5 from Persons other than the Members or the Company (for example, pursuant to insurance policies that provide primary coverage) before causing the Company to make payments pursuant to this Section 4.5.
(d) The Company may purchase and maintain (insurance with such limits or reimburse Shipping Master or its Affiliates for coverages as the cost of) insuranceManager reasonably deems appropriate, on behalf at the expense of the Company Boardand to the extent available, its Affiliates and such other Persons as for the Company Board shall determine, protection of any Indemnitee against any liability that may be asserted against or expense that may be Losses incurred by such Person Indemnitee in connection with the Company’s activities any such capacity or such Person’s activities on behalf arising out of the Companyits status as such, regardless of whether or not the Company would have the power or obligation to indemnify such Indemnified Person against such liability Losses under the Act or the provisions of this AgreementSection 4.5. The Manager may purchase and maintain insurance on behalf of the Company for the protection of any officer, director, employee, consultant or other agent of any other Entity in which the Company owns an interest or of which the Company is a creditor against similar liabilities.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 4.5 or any portion hereof shall be invalidated on any ground by any arbitrator or court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Indemnified Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation 4.5 to the full fullest extent permitted by any applicable portion of this Section 17 4.5 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 7 contracts
Samples: Limited Liability Company Agreement (LunaDNA, LLC), Limited Liability Company Agreement (SavvyShares LLC), Limited Liability Company Agreement (LunaDNA, LLC)
Indemnification. (ai) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) Executive shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such Indemnitee Executive may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemniteehis activities in connection with the establishment, management or operations of any Covered Business, whether arising from acts or omissions to act occurring before or after the date of this Agreement; provided, however, that the Indemnitee Executive shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee Executive is seeking indemnification pursuant to this Section 178(n), the Indemnitee Executive acted in bad faith or engaged in fraudfraud or willful misconduct. Notwithstanding the preceding sentence, willful misconduct or gross negligence orexcept as otherwise provided in Section 8(n)(ix), in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 Company shall be made required to indemnify Executive in connection with any action, suit or proceeding (or part thereof) commenced by Executive only out if the commencement of the assets of the Companysuch action, it being agreed that no Member shall suit or proceeding (ior part thereof) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to by Executive was authorized by the Company to enable it to effectuate such indemnificationin its sole discretion.
(bii) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) Executive in appearing at, participating in or defending any indemnifiable claim, demand, action, suit or proceeding pursuant to Section 8(n) shall, from time to time, be advanced by the Company prior to the a final disposition of such claim, demand, action, suit or proceeding and non-appealable determination that Executive is not entitled to be indemnified upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee Executive to repay such amount if it ultimately shall be determined that the Indemnitee Executive is not entitled to be indemnified as authorized in pursuant to this Section 178(n). Notwithstanding the immediately preceding sentence, except as otherwise provided in Section 8(n)(ix), the Company shall be required to indemnify an Executive pursuant to the immediately preceding sentence in connection with any action, suit or proceeding (or part thereof) commenced by Executive only if the commencement of such action, suit or proceeding (or part thereof) by Executive was authorized by the Company in its sole discretion.
(ciii) The indemnification provided by this Section 17 8(n) shall be in addition to any other rights to which an Indemnitee Executive may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the IndemniteeExecutive’s capacity as an Indemnitee Executive and as to actions in any other capacity, and shall continue as to an Indemnitee who Executive if he has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteecapacity.
(div) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost ofAny indemnification pursuant to this Section 8(n) insurance, on behalf shall be made only out of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf assets of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) . In no event may an Indemnitee Executive subject the Members members of the Company to personal liability by reason of the indemnification provisions set forth in this Agreement.
(gv) An Indemnitee Executive shall not be denied indemnification in whole or in part under this Section 17 8(n) because the Indemnitee Executive had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement, the Agreement Among Principals or the Limited Liability Company Agreement of the Company.
(hvi) The provisions of this Section 17 8(n) are for the benefit of the Indemnitees, their Executive and his heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ivii) Executive shall, in the performance of his duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers, directors or employees of the Company, or committees of the Board, or by any other Person as to matters Executive, as the case may be, reasonably believes are within such other Person’s professional or expert competence.
(viii) No amendment, modification or repeal of this Section 17 8(n) or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee Executive to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee Executive under and in accordance with the provisions of this Section 17 8(n) as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or or-in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(jix) If a claim for indemnification (following the final disposition of the action, suit or proceeding for which indemnification is being sought) or advancement of expenses under this Section 17 8(n) is not paid in full within thirty (30) days after a written claim therefor by Executive has been received by the Company, Executive may file suit to recover the unpaid amount of such claim and, if successful in whole or any portion hereof in part, shall be invalidated on any ground by any court entitled to be paid the expenses of competent jurisdictionprosecuting such claim, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 7 contracts
Samples: Employment Agreement, Employment Agreement (Apollo Global Management LLC), Employment Agreement (Apollo Global Management LLC)
Indemnification. (a) A. To the fullest extent permitted by law but subject to applicable law, the limitations expressly provided in this Agreement, Partnership shall indemnify each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including including, without limitation, attorney’s fees and other legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, that relate to the operations of the Partnership (“Actions”) as set forth in this Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, however, that the Partnership shall not indemnify an Indemnitee (i) if the act or omission of the Indemnitee was material to the matter giving rise to the Action and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful; or (iii) for any transaction for which such Indemnitee received an improper personal benefit in violation or breach of any provision of this Agreement; and provided, further, that (x) no payments pursuant to this Agreement shall be made by the Partnership to indemnify or advance funds to any Indemnitee with respect to any Action initiated or brought voluntarily by such Indemnitee (and not by way of defense) unless (I) approved or authorized by the Managing General Partner or (II) incurred to establish or enforce such Indemnitee’s right to indemnification under this Agreement, and (y) the Partnership shall not be liable for any expenses incurred by an Indemnitee in connection with one or more Actions or claims brought by the Partnership or involving such Indemnitee if such Indemnitee is found liable to the Partnership on any portion of any claim in any such Action. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any Debt of the Partnership or any Subsidiary of the Partnership (including, without limitation, any Debt which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to, and the Managing General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such Debt. It is the intention of this Section 7.7.A that the Partnership indemnify each Indemnitee to the fullest extent permitted by law. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee shall did not be indemnified and held harmless if there has been meet the requisite standard of conduct set forth in this Section 7.7.A. The termination of any proceeding by conviction of an Indemnitee or upon a final and non-appealable judgment entered plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment, creates a court rebuttable presumption that such Indemnitee acted in a manner contrary to that specified in this Section 7.7.A with respect to the subject matter of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking such proceeding. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member and neither the Managing General Partner nor any other Holder shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company capital of the Partnership or otherwise provide funds to enable it the Partnership to effectuate such indemnificationfund its obligations under this Section 7.7.
(b) B. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant a party to Section 17(a) a proceeding or otherwise subject to or the focus of or is involved in defending any claim, demand, action, suit Action shall be paid or proceeding shall, from time to time, be advanced reimbursed by the Company prior to Partnership as incurred by the Indemnitee in advance of the final disposition of such claim, demand, action, suit or proceeding the Action upon receipt by the Company Partnership of any (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in Section 7.7A has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay such the amount if it shall ultimately be determined that the Indemnitee is standard of conduct has not entitled to be indemnified as authorized in this Section 17been met.
(c) C. The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the MembersPartners, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the IndemniteeIndemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.
(d) D. The Company may Partnership may, but shall not be obligated to, purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of any of the Company Board, its Affiliates Indemnitees and such other Persons as the Company Board Managing General Partner shall determine, against any liability that may be asserted against or expense expenses that may be incurred by such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes E. Any liabilities which an Indemnitee incurs as a result of this Section 17acting on behalf of the Partnership, the Company shall be deemed to have requested an Indemnitee to serve Managing General Partner or the Special Limited Partner (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan whenever or any related trust or funding mechanism (whether such liabilities are in the performance by it form of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on by the IRS, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities or judgments or fines under this Section 7.7, unless such liabilities arise as a result of (i) an act or omission of such Indemnitee with respect that was material to an employee benefit plan pursuant the matter giving rise to applicable law shall constitute “fines” within the meaning Action and either was committed in bad faith or was the result of Section 17(a)active and deliberate dishonesty; and action taken or omitted by it with respect to any employee benefit plan (ii) in the performance case of its duties for a purpose reasonably believed by it any criminal proceeding, an act or omission that such Indemnitee had reasonable cause to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is inbelieve was unlawful, or not opposed to, the best interests (iii) any transaction in which such Indemnitee received a personal benefit in violation or breach of the Companyany provision of this Agreement or applicable law.
(f) F. In no event may an Indemnitee subject any of the Members Holders to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) G. An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) H. The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No . Any amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall be prospective only and shall not in any manner terminate, reduce or impair way affect the right of limitations on the Partnership’s liability to any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or I. It is the intent of the parties that any portion hereof shall be invalidated on any ground amounts paid by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified Partnership to the Managing General Partner pursuant to this Section 17 7.7 shall be treated as to costs, charges and expenses (including reasonable attorneys’ fees“guaranteed payments” within the meaning of Code Section 707(c), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.), Contribution Agreement (Welsh Property Trust, Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the an Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7, be advanced by the Partnership, from time to time, prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the Indemnitee is not entitled to be indemnified.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacitycapacity (including any capacity under the Contribution, Purchase and Sale Agreement and the Underwriting Agreement), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it an Indemnitee of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Class D Preferred Unit and Warrant Purchase Agreement (NGL Energy Partners LP), Class D Preferred Unit and Warrant Purchase Agreement (NGL Energy Partners LP), Limited Partnership Agreement (NGL Energy Partners LP)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in intentional fraud, willful misconduct or gross negligence (including a willful breach of this Agreement) or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.1 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 179.1.
(c) The indemnification provided by this Section 17 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a)9.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 9.1 are for the benefit of the Indemnitees, their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 9.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 9.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (Summit Midstream Partners, LP), Limited Liability Company Agreement (Emerge Energy Services LP), Limited Liability Company Agreement (Southcross Energy Partners, L.P.)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.1 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 179.1.
(c) The indemnification provided by this Section 17 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)9.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 9.1 are for the benefit of the Indemnitees, their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 9.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 9.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (CSI Compressco LP), Limited Liability Company Agreement (Andeavor Logistics Lp), Limited Liability Company Agreement (USA Compression Partners, LP)
Indemnification. (a) To a. Subject to limitations imposed by law, the Company shall indemnify and hold harmless the Executive to the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expensesattorneys’ fees), judgments, penalties, fines, penaltiessettlements, interest, settlements or other amounts arising from any and all claimsother liabilities incurred or paid by him in connection with the investigation, demandsdefense, actionsprosecution, suits settlement or proceedingsappeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in investigative and to which such Indemnitee may be involved, the Executive was or is a party or is threatened to be involved, as made a party or otherwise, by reason of its status as an Indemnitee; provided, the fact that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatExecutive is or was an officer, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith employee or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets agent of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute by reason of anything done or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced not done by the Company prior to the final disposition of Executive in any such claimcapacity or capacities, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined provided that the Indemnitee is Executive acted in good faith, in a manner that was not entitled to be indemnified as authorized grossly negligent or constituted willful misconduct and in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose manner he reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, to the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction , and, with respect to which the indemnification applies if the transaction any criminal action or proceeding, had no reasonable cause to believe his conduct was otherwise permitted by the terms of this Agreement.
(h) unlawful. The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns Company also shall pay any and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and all expenses (including reasonable attorney’s fees) incurred by the Executive as a result of the Executive being called as a witness in connection with any matter involving the Company and/or any of its officers or directors.
b. The Company shall pay any expenses (including attorneys’ fees), judgments, fines penalties, fines, settlements, and amounts paid other liabilities incurred by the Executive in settlement with respect to investigating, defending, settling or appealing any action, suit or proceeding described in this Section 21 in advance of the final disposition of such action, suit or proceeding, appeal, inquiry or investigation . The Company shall promptly pay the amount of such expenses to the full Executive, but in no event later than 10 days following the Executive’s delivery to the Company of a written request for an advance pursuant to this Section 21, together with a reasonable accounting of such expenses.
c. The Executive hereby undertakes and agrees to repay to the Company any advances made pursuant to this Section 21 if and to the extent permitted that it shall ultimately be found that the Executive is not entitled to be indemnified by any applicable portion the Company for such amounts.
d. The Company shall make the advances contemplated by this Section 21 regardless of the Executive’s financial ability to make repayment, and regardless whether indemnification of the Indemnitee by the Company will ultimately be required. Any advances and undertakings to repay pursuant to this Section 21 shall be unsecured and interest-free.
e. The provisions of this Section 17 that 21 shall not have been invalidated and to survive the fullest extent permitted by applicable lawtermination of this Agreement.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Employment Agreement (Devcon International Corp), Employment Agreement (Devcon International Corp), Employment Agreement (Devcon International Corp)
Indemnification. (a) To the fullest extent permitted by law but subject The Company hereby agrees to the limitations expressly provided in this Agreement, indemnify each Indemnitee (person who at any time serves as defined below) shall be indemnified and held harmless by a Director or officer of the Company from and (each such person being an "indemnitee") against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees liabilities and expenses), including amounts paid in satisfaction of judgments, fines, in compromise or as fines and penalties, interestand reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, settlements suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, civil or criminal, before any court or administrative or investigative, investigative body in which such Indemnitee indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwiseotherwise or with which such indemnitee may be or may have been threatened, while acting in any capacity set forth in this Section 3.7 by reason of its status the indemnitee having acted in any such capacity, except with respect to any matter as an Indemnitee; provided, to which the indemnitee shall not have acted in good faith in the reasonable belief that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, indemnitee's action was in respect the best interest of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence Company or, in the case of a any criminal matterproceeding, acted with knowledge as to which the indemnitee shall have had reasonable cause to believe that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 , provided, however, that no indemnitee shall be made only out indemnified hereunder against any liability to any person or any expense of the assets such indemnitee arising by reason of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or willful misfeasance, (ii) have bad faith, (iii) gross negligence, or (iv) reckless disregard of the duties involved in the conduct of the indemnitee's position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to as "disabling conduct"). Notwithstanding the foregoing, with respect to any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or other proceeding shallvoluntarily prosecuted by any indemnitee as plaintiff, from time to time, indemnification shall be advanced by mandatory only if the Company prior to the final disposition prosecution of such claim, demand, action, suit or other proceeding upon receipt by such indemnitee (1) was authorized by a majority of the Directors or (2) was instituted by the Company of any undertaking by indemnitee to enforce his or on behalf of her rights to indemnification hereunder in a case in which the Indemnitee indemnitee is found to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized such indemnification. The rights to indemnification set forth in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and Agreement shall continue as to an Indemnitee a person who has ceased to serve in such capacity be a Director or officer of the Company and shall inure to the benefit of the his or her heirs, successors, assigns executors and administrators personal and legal representatives. No amendment or restatement of this Agreement or repeal of any of its provisions shall limit or eliminate any of the Indemniteebenefits provided to any person who at any time is or was a Director or officer of the Company or otherwise entitled to indemnification hereunder in respect of any act or omission that occurred prior to such amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall be made hereunder unless there has been a determination (i) by a final decision on the merits by a court or other body of competent jurisdiction before whom the issue of entitlement to indemnification hereunder was brought that such indemnitee is entitled to indemnification hereunder or, (ii) in the absence of such a decision, by (1) a majority vote of a quorum of those Directors who are Disinterested Non-Party Directors that the indemnitee is entitled to indemnification hereunder, or (2) if such quorum is not obtainable or even if obtainable, if such majority so directs, independent legal counsel in a written opinion concludes that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection with the expense of defending any proceeding shall be authorized and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Company shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Company receives a written affirmation by the indemnitee of the indemnitee's good faith belief that the standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Company unless it is subsequently determined that the indemnitee is entitled to such indemnification and if a majority of the Directors determine that the applicable standards of conduct necessary for indemnification appear to have been met. In addition, at least one of the following conditions must be met: (i) the indemnitee shall provide adequate security for his or her undertaking, (ii) the Company shall be insured against losses arising by reason of any lawful advances, or (iii) a majority of a quorum of the Disinterested Non-Party Directors, or if a majority vote of such quorum so direct, independent legal counsel in a written opinion, shall conclude, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.
(d) The Company rights accruing to any indemnitee under these provisions shall not exclude any other right which any person may purchase and maintain (have or reimburse Shipping Master or its Affiliates for hereafter acquire under this Agreement, the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf By-Laws of the Company, regardless any statute, agreement, vote of whether Members or Directors who are ''disinterested persons'' (as defined in Section 2(a)(19) of the Company would have the power 1000 Xxx) or any other right to indemnify such Person against such liability under the provisions of this Agreementwhich he or she may be lawfully entitled.
(e) For purposes of Subject to any limitations provided by the 1940 Act and this Section 17Agreement, the Company shall be deemed have the power and authority to have requested an Indemnitee indemnify and provide for the advance payment of expenses to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties employees, agents and other Persons providing services to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall serving in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving capacity at the request of the Company Board to the full extent corporations organized under the Delaware General Corporation Law may indemnify or provide for the advance payment of expenses for such Persons, provided that such indemnification has been approved by a majority of the Directors.
(f) Each Member covenants for itself and its successors, assigns, heirs and personal representatives that such Person shall, at any time prior to or after the dissolution of the Company, whether before of after such Member's withdrawal from the Company, pay to the Company and/or the Tax Matters Partner on demand any amount which the Company or the Tax Matters Partner, as a memberthe case may be, partneris required to pay in respect of taxes (including withholding taxes and, directorif applicable, officerinterest, employee, partner, agent, fiduciary penalties and costs and expenses of contesting any such taxes) imposed upon income of or trustee of another person, in each case, acting in distributions to such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesMember.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (BlackRock Core Alternatives Portfolio LLC), Limited Liability Company Agreement (BlackRock Core Alternatives Portfolio LLC), Limited Liability Company Agreement (BlackRock Core Alternatives Portfolio LLC)
Indemnification. (a) To The Company shall indemnify and hold harmless the Member and each Authorized Delegate (including, without limitation, each Director and Officer) to the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or severallosses, costs and expenses (including legal attorneys’ fees and expensesdisbursements), judgments, fines, penaltiessettlements, interest, settlements or and other amounts (collectively, “Costs”) arising from any and all claims, demands, actions, suits or proceedings, whether proceedings (civil, criminal, administrative or investigative) (collectively, “Actions”) in which the Member or such Indemnitee Authorized Delegate may be involved, or is threatened to be involved, involved as a party or otherwise, by reason relating to the performance or nonperformance of any act of such Member or Authorized Delegate concerning the activities of the Company or its status as an Indemniteesubsidiaries; provided, however, that such indemnification (1) shall be for alleged acts or omissions made by the Indemnitee Member in its capacity as manager or member or an Authorized Delegate in its official capacity and (2) shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatinclude indemnification for negligence, in respect of the matter but exclude indemnification (A) for which the Indemnitee is seeking indemnification pursuant to this Section 17acts or omissions involving gross negligence, the Indemnitee acted in bad faith actual fraud or engaged in fraud, willful misconduct or gross negligence or, (B) with respect to any transaction from which the indemnitee derived an improper personal benefit. The right to indemnification conferred in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 13(a) shall include the right to be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to paid by the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expensesattorneys’ fees) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claimaction in advance of its final disposition (an “advancement of expenses”); provided, demandhowever, action, suit or proceeding shall, from time to time, be advanced by that the Company prior may require the indemnitee to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any provide an undertaking by or on behalf of the Indemnitee to repay such amount all amounts advanced if it shall should be ultimately determined that the Indemnitee indemnitee is not entitled to be indemnified as authorized under this Section 13. The rights to indemnification and advancement of expenses hereunder shall not be exclusive of any other right that the Member or an Authorized Delegate may have or hereafter acquire under any statute, agreement, action of the Member, vote of the Board, or otherwise. The right to indemnification and to the advancement of expenses conferred in this Section 17.
(c13(a) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee indemnitee who has ceased to serve in such capacity be an Authorized Delegate and shall inure to the benefit of the indemnitee’s heirs, successors, assigns executors and administrators of the Indemniteeadministrators.
(db) The Company, upon authorization by the Member or the Board, may grant rights to indemnification and advancement of expenses to any manager, employee or other agent of the Company to the full extent permitted by law.
(c) The Company, at its expense, may maintain insurance to protect itself and any manager, Director, Officer, employee or other agent of the Company or any other limited liability company, corporation, partnership, joint venture, trust or other enterprise against any liability, loss or expense. The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, insurance regardless of whether the Company it would have the power to indemnify such Person person against such expense, liability or loss under the provisions Act.
(d) Notwithstanding the foregoing, any and all indemnification and advancement of this Agreementexpenses obligations of the Company shall be satisfied only from the assets of the Company, and the Member shall have no liability or responsibility therefor.
(e) For purposes Any amendment or modification of this Section 17, the Company 13 shall be deemed to have requested an Indemnitee to serve as fiduciary not adversely affect any right or protection hereunder of an employee benefit plan whenever the performance by it any person in respect of its duties any act or omission occurring prior to the Company also imposes duties on, time of such act or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Companyomission.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (Verso Androscoggin LLC), Limited Liability Company Agreement (Verso Androscoggin LLC), Limited Liability Company Agreement (Verso Androscoggin LLC)
Indemnification. (a) To the fullest extent permitted by law Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its such person’s status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.5, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; . The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17 6.5 shall be made only out of the assets of the Company, it being agreed that no a Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(bi) To the fullest extent permitted by lawLaw, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.5(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.5.
(cii) The Company shall, to the fullest extent permitted under the Delaware LLC Act, pay or reimburse expenses incurred by an Indemnitee in connection with the Indemnitee’s appearance as a witness or other participation in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding.
(b) The indemnification provided by this Section 17 6.5 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee; provided that the indemnification provided by this Section 6.5 shall be, after any indemnification provided pursuant to the MLP Agreement, the primary source of indemnification with respect to the matters addressed herein, without regard to other potential sources of indemnification, reimbursement or contribution (subject to applicable express provisions of any insurance policy to which the Company is a party).
(dc) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Boardmembers of the Board of Directors, its Affiliates the Officers and such other Persons as the Company Board of Directors shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(ed) For purposes of this Section 176.5, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a6.5(a); and action taken or omitted by it the Indemnitee with respect to any an employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(ge) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.5 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hf) The provisions of this Section 17 6.5 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ig) No amendment, modification or repeal of this Section 17 6.5 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.5 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.
(jh) If this Section 17 Any act or any portion hereof shall be invalidated omission performed or omitted by an Indemnitee on any ground advice of legal counsel or an independent consultant who has been employed or retained by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant be presumed to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawperformed or omitted in good faith without gross negligence or willful misconduct.
(ki) For purposes hereofTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.5 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesFAULT OR OTHER CONDUCT.
Appears in 6 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement (Memorial Production Partners LP)
Indemnification. (a) To the fullest extent permitted by law but subject Subject to the limitations expressly provided set forth herein and in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176 hereof, the Corporation hereby agrees to indemnify Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding as follows: The Corporation shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest Proceeding (as hereinafter defined) associated with Indemnitee’s being an Agent of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is inCorporation, or not opposed to, the best interests of the Company.
(f) In no event may an indemnify Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
law and the Certificate of Incorporation of the Corporation in effect on the date hereof or as such law or Certificate of Incorporation may from time to time be amended (k) For purposes hereofbut, “Indemnitee” means (a) in the Company Boardcase of any such amendment, (b) only to the extent such amendment permits the Corporation to provide broader indemnification rights than the law or Certificate of Incorporation permitted the Corporation to provide before such amendment). The right to indemnification conferred herein and in the Certificate of Incorporation shall be presumed to have been relied upon by Indemnitee in serving or continuing to serve the Corporation as an Agent and shall be enforceable as a contract right. Without in any person who way diminishing the scope of the indemnification provided by this Section 2, the Corporation will indemnify Indemnitee to the full extent permitted by law if and wherever Indemnitee is or was a Managerparty or is threatened to be made a party to any Proceeding, Officer, employee, agent including any such Proceeding brought by or trustee in the right of the CompanyCorporation, and (c) any person who by reason of the fact that Indemnitee is or was serving at the request an Agent or by reason of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary anything done or trustee of another person, in each case, acting not done by Indemnitee in such capacity, providedagainst Expenses (as hereinafter defined) and Liabilities (as hereinafter defined) actually and reasonably incurred by Indemnitee or on his or her behalf in connection with the investigation, that defense, settlement or appeal of such Proceeding. In addition to, and not as a person limitation of, the foregoing, the rights of indemnification of Indemnitee provided under this Agreement shall not include those rights set forth in Sections 3 and 8 below. Notwithstanding the foregoing, the Corporation shall be an required to indemnify Indemnitee in connection with a Proceeding commenced by reason Indemnitee (other than a Proceeding commenced by Indemnitee to enforce Indemnitee’s rights under this Agreement) only if the commencement of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicessuch Proceeding was authorized by the Board of Directors.
Appears in 5 contracts
Samples: Indemnification Agreement (Concentrix Corp), Indemnification Agreement, Indemnification Agreement (Synnex Information Technologies Inc)
Indemnification. (a) To Subject to limitations imposed by law, the Company shall indemnify and hold harmless the Executive to the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expensesattorneys' fees), judgments, penalties, fines, penaltiessettlements, interest, settlements or other amounts arising from any and all claimsother liabilities incurred or paid by him in connection with the investigation, demandsdefense, actionsprosecution, suits settlement or proceedingsappeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in investigative and to which such Indemnitee may be involved, the Executive was or is a party or is threatened to be involved, as made a party or otherwise, by reason of its status as an Indemnitee; provided, the fact that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatExecutive is or was an officer, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith employee or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets agent of the Company, it being agreed or by reason of anything done or not done by the Executive in any such capacity or capacities, provided that no Member shall (i) the Executive acted in good faith, in a manner that was not grossly negligent or constituted willful misconduct and in a manner he reasonably believed to be personally liable for such indemnification in or (ii) have any obligation to contribute or loan any monies or property not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The Company to enable it to effectuate such indemnificationalso shall pay any and all expenses (including attorney's fees) incurred by the Executive as a result of the Executive being called as a witness in connection with any matter involving the Company and/or any of its officers or directors.
(b) To the fullest extent permitted by law, The Company shall pay any expenses (including legal fees attorneys' fees), judgments, penalties, fines, settlements, and expenses) other liabilities incurred by an Indemnitee who is indemnified pursuant to Section 17(a) the Executive in defending investigating, defending, settling or appealing any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to described in this Section 19 in advance of the final disposition of such claim, demand, action, suit or proceeding upon receipt by proceeding. The Company shall promptly pay the amount of such expenses to the Executive, but in no event later than 10 days following the Executive's delivery to the Company of any undertaking by or on behalf a written request for an advance pursuant to this Section 19, together with a reasonable accounting of the Indemnitee such expenses.
(c) The Executive hereby undertakes and agrees to repay such amount to the Company any advances made pursuant to this Section 19 if and to the extent that it shall -11- 12 ultimately be determined found that the Indemnitee Executive is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in Company for such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteeamounts.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for shall make the cost of) insurance, on behalf advances contemplated by this Section 19 regardless of the Company BoardExecutive's financial ability to make repayment, its Affiliates and such other Persons as regardless whether indemnification of the Indemnitee by the Company Board will ultimately be required. Any advances and undertakings to repay pursuant to this Section 19 shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreementunsecured and interest-free.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for 19 shall survive the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal termination of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedAgreement.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 5 contracts
Samples: Employment Agreement (Terremark Worldwide Inc), Employment Agreement (Terremark Worldwide Inc), Employment Agreement (Terremark Worldwide Inc)
Indemnification. (a) To the fullest extent permitted by law but subject The Company hereby agrees to the limitations expressly provided in this Agreement, indemnify each Indemnitee (person who at any time serves as defined below) shall be indemnified and held harmless by a Director or officer of the Company from and (each such person being an "indemnitee") against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees liabilities and expenses), including amounts paid in satisfaction of judgments, fines, in compromise or as fines and penalties, interestand reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, settlements suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, civil or criminal, before any court or administrative or investigative, investigative body in which such Indemnitee indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwiseotherwise or with which such indemnitee may be or may have been threatened, while acting in any capacity set forth in this Section 3.7 by reason of its status the indemnitee having acted in any such capacity, except with respect to any matter as an Indemnitee; provided, to which the indemnitee shall not have acted in good faith in the reasonable belief that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, indemnitee's action was in respect the best interest of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence Company or, in the case of a any criminal matterproceeding, acted with knowledge as to which the indemnitee shall have had reasonable cause to believe that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 , provided, however, that no indemnitee shall be made only out indemnified hereunder against any liability to any person or any expense of the assets such indemnitee arising by reason of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or willful misfeasance, (ii) have bad faith, (iii) gross negligence, or (iv) reckless disregard of the duties involved in the conduct of the indemnitee's position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to as "disabling conduct"). Notwithstanding the foregoing, with respect to any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or other proceeding shallvoluntarily prosecuted by any indemnitee as plaintiff, from time to time, indemnification shall be advanced by mandatory only if the Company prior to the final disposition prosecution of such claim, demand, action, suit or other proceeding upon receipt by such indemnitee (1) was authorized by a majority of the Directors or (2) was instituted by the Company of any undertaking by indemnitee to enforce his or on behalf of her rights to indemnification hereunder in a case in which the Indemnitee indemnitee is found to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized such indemnification. The rights to indemnification set forth in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and Agreement shall continue as to an Indemnitee a person who has ceased to serve in such capacity be a Director or officer of the Company and shall inure to the benefit of the his or her heirs, successors, assigns executors and administrators personal and legal representatives. No amendment or restatement of this Agreement or repeal of any of its provisions shall limit or eliminate any of the Indemniteebenefits provided to any person who at any time is or was a Director or officer of the Company or otherwise entitled to indemnification hereunder in respect of any act or omission that occurred prior to such amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall be made hereunder unless there has been a determination (i) by a final decision on the merits by a court or other body of competent jurisdiction before whom the issue of entitlement to indemnification hereunder was brought that such indemnitee is entitled to indemnification hereunder or, (ii) in the absence of such a decision, by (1) a majority vote of a quorum of those Directors who are Disinterested Non-Party Directors that the indemnitee should be entitled to indemnification hereunder, or (2) if such quorum is not obtainable or even if obtainable, if such majority so directs, independent legal counsel in a written opinion concludes that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection with the expense of defending any proceeding shall be authorized and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Company shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Company receives a written affirmation by the indemnitee of the indemnitee's good faith belief that the standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Company unless it is subsequently determined that the indemnitee is entitled to such indemnification and if a majority of the Directors determine that the applicable standards of conduct necessary for indemnification appear to have been met. In addition, at least one of the following conditions must be met: (i) the indemnitee shall provide adequate security for his or her undertaking, (ii) the Company shall be insured against losses arising by reason of any lawful advances, or (iii) a majority of a quorum of the Disinterested Non-Party Directors, or if a majority vote of such quorum so direct, independent legal counsel in a written opinion, shall conclude, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.
(d) The Company rights accruing to any indemnitee under these provisions shall not exclude any other right which any person may purchase and maintain (have or reimburse Shipping Master or its Affiliates for hereafter acquire under this Agreement, the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf By-Laws of the Company, regardless any statute, agreement, vote of whether Members or Directors who are not ''interested persons'' of the Company would have (as defined in Section 2(a)(19) of the power 0000 Xxx) or any other right to indemnify such Person against such liability under the provisions of this Agreementwhich he or she may be lawfully entitled.
(e) For purposes of Subject to any limitations provided by the 1940 Act and this Section 17Agreement, the Company shall be deemed have the power and authority to have requested an Indemnitee indemnify and provide for the advance payment of expenses to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties employees, agents and other Persons providing services to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall serving in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving capacity at the request of the Company Board to the full extent corporations organized under the Delaware General Corporation Law may indemnify or provide for the advance payment of expenses for such Persons, provided that such indemnification has been approved by a majority of the Directors.
(f) Each Member covenants for itself and its successors, assigns, heirs and personal representatives that such Person shall, at any time prior to or after the dissolution of the Company, whether before of after such Member's withdrawal from the Company, pay to the Company and/or the Tax Matters Partner on demand any amount which the Company or the Tax Matters Partner, as a memberthe case may be, partneris required to pay in respect of taxes (including withholding taxes and, directorif applicable, officerinterest, employee, partner, agent, fiduciary penalties and costs and expenses of contesting any such taxes) imposed upon income of or trustee of another person, in each case, acting in distributions to such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesMember.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (BlackRock Alternatives Allocation FB TEI Portfolio LLC), Limited Liability Company Agreement (BlackRock Alternatives Allocation Portfolio LLC), Limited Liability Company Agreement (BlackRock Alternatives Allocation Master Portfolio LLC)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.1 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.1(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 179.1.
(c) The indemnification provided by this Section 17 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)9.1; and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 9.1 are for the benefit of the Indemnitees, their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 9.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 9.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Atlas Growth Partners, L.P.), Limited Liability Company Agreement (Atlas Resource Partners, L.P.), Limited Liability Company Agreement (Atlas Energy, L.P.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that in each case the Indemnitee acted in good faith and in a manner that such Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not be indemnified and held harmless if there has been create a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which presumption that the Indemnitee is seeking acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 10.1 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a10.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 1710.1.
(c) The indemnification provided by this Section 17 10.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company BoardCompany, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 1710.1, (i) the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a10.1(a); and (iii) action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 10.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 10.1 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 10.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 10.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 5 contracts
Samples: Exchange and Redemption Agreement, Exchange and Redemption Agreement, Limited Liability Company Agreement (Sunoco Logistics Partners L.P.)
Indemnification. (a) To the fullest extent permitted by law law, but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as the Indemnitee’s serving or having served, or taking or having taken any action or inaction in, any capacity that causes or caused the Indemnitee to be an Indemnitee; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 179.01, the Indemnitee acted in bad faith or faith, engaged in fraud, fraud or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.01 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding proceeding, upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.01.
(c) The indemnification provided by this Section 17 9.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company Company, its Affiliates, the Board, its Affiliates the Officers and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.01, (i) the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a9.01(a); and (iii) action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its the Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 9.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 9.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(ji) If Notwithstanding anything to the contrary set forth in this Section 17 Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Members or any portion hereof shall be invalidated on other Persons who have acquired limited liability company interests in the Company or are otherwise bound by this Agreement, for losses sustained or liabilities incurred as a result of any ground act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by any a court of competent jurisdictionjurisdiction determining that, then in respect of the Company matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
(j) Subject to its obligations and duties as set forth in Article VI, the Board and any committee thereof may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through the Company’s Officers or agents, and neither the Board nor any committee thereof shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid be responsible for any misconduct or negligence on the part of any such Officer or agent appointed by the Board or any committee thereof in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawgood faith.
(k) For purposes hereofTo the extent that, “Indemnitee” means at law or in equity, an Indemnitee has duties (aincluding fiduciary duties) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of and liabilities relating thereto to the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each casesuch Indemnitee, acting in such capacityconnection with the Company’s business or affairs, provided, that a person shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or otherwise modify or eliminate the duties and liabilities of an Indemnitee otherwise existing at law or in equity, are agreed by reason the Members to replace such other duties and liabilities of providingsuch Indemnitee.
(l) Any amendment, modification or repeal of subsections (i), (j) (k) or (l) of this Section 9.01 shall be prospective only and shall not in any way affect the limitations on a fee-for-services basisliability under such subsections as in effect immediately prior to such amendment, trusteemodification or repeal with respect to claims arising from or relating to matters occurring, fiduciary in whole or custodial servicesin part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC), Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC), Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.1 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 179.1.
(c) The indemnification provided by this Section 17 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of this Section 17(a)9.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 9.1 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No Any amendment, modification or repeal of this Section 17 9.1 or any provision hereof shall be prospective only and shall not in any manner way terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 9.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Kimbell Royalty Partners, LP), Limited Liability Company Agreement (Kimbell Royalty Partners, LP), Limited Liability Company Agreement
Indemnification. (a) To As of the Effective Time, the indemnification and exculpation provisions contained in the Bylaws and the Articles of Incorporation of the Surviving Corporation shall be at least as favorable to individuals who immediately prior to the Closing Date were directors, officers, agents or employees of the Company or otherwise entitled to indemnification under the Company's Bylaws or Articles of Incorporation (an "Indemnified Party") as those contained in the Bylaws and the Articles of Incorporation of the Company, respectively, and shall not be amended, repealed or otherwise modified for a period of six years after the Closing Date in any manner that would adversely affect the rights thereunder of any Indemnified Party. The Company hereby covenants that it shall, to the fullest extent permitted by under Minnesota law but subject and regardless of whether the Merger becomes effective, indemnify, defend and hold harmless, and after the Effective Time, Purchaser and the Surviving Corporation shall jointly and severally, to the limitations expressly provided in this Agreementfullest extent permitted under Delaware law, indemnify, defend and hold harmless, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and Indemnified Party against any and all costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilitiesliabilities and amounts paid in settlement in connection with any claim, joint action, suit, proceeding or severalinvestigation, expenses including, without limitation, liabilities arising out of this Agreement or under the Securities Exchange Act, occurring through the Closing Date, and in the event of any such claim, action, suit, proceeding or investigation (including legal whether arising before or after the Effective Time), (i) the Company or the Surviving Corporation shall pay the reasonable fees and expenses)expenses of counsel selected by the Indemnified Parties, judgmentswhich counsel shall be reasonably satisfactory to the Company or the Surviving Corporation, finespromptly as statements therefor are received, penalties, interest, settlements or other amounts arising from and (ii) the Company and the Surviving Corporation will cooperate in the defense of any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemniteematter; provided, however, that neither the Indemnitee Company nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be indemnified unreasonably withheld); and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatprovided, in respect of further, that neither the matter for which Company nor the Indemnitee is seeking indemnification Surviving Corporation shall be obliged pursuant to this Section 17, 5.7 to pay the Indemnitee acted fees and disbursements of more than one counsel for all Indemnified Parties in bad faith or engaged in fraud, willful misconduct or gross negligence orany single action except to the extent that, in the case opinion of a criminal mattercounsel for the Indemnified Parties, acted with knowledge that two or more of such Indemnified Parties have conflicting interests in the Indemnitee’s conduct was unlawful; outcome of such action. Purchaser shall cause the Surviving Corporation to reimburse all expenses, including reasonable attorney's fees and expenses, incurred by any indemnification pursuant person to enforce the obligations of Purchaser and the Surviving Corporation under this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) 5.7. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant Purchaser shall cause the Surviving Corporation to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or advance expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreementforegoing indemnification.
(eb) For purposes If the Surviving Corporation or any of this Section 17its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, the Company then and in each such case, proper provision shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever made so that the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries successors and assigns of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within Surviving Corporation assume the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions obligations set forth in this AgreementSection 5.7.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 5 contracts
Samples: Merger Agreement (Landrys Seafood Restaurants Inc), Merger Agreement (Berman Lyle), Merger Agreement (Schussler Steven W)
Indemnification. (a) To the fullest extent permitted by law Applicable Law, but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an the Indemnitee’s serving or having served, or taking or having taken any action or inaction, in such capacity on behalf of or for the benefit of the Company or the Partnership or any other member of the Partnership Group; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 179.01, the Indemnitee acted in bad faith or faith, engaged in fraud, fraud or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.01 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification. The indemnification and advancement of expenses provided under this Agreement and the Partnership Agreement shall be the primary source of indemnification and advancement of expenses and any other indemnification or similar rights of an Indemnitee shall be secondary to the Company’s obligations under this Section 9.01.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding proceeding, upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.01.
(c) The indemnification provided by this Section 17 9.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may shall purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company Company, its Affiliates, the Board, its Affiliates the Officers and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.01, (i) the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a9.01(a); and (iii) action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its the Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 9.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 9.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(ji) If Notwithstanding anything to the contrary set forth in this Section 17 Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Members or any portion hereof shall be invalidated on other Persons who have acquired limited liability company interests in the Company, for losses sustained or liabilities incurred as a result of any ground act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by any a court of competent jurisdictionjurisdiction determining that, then in respect of the Company matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
(j) Subject to its obligations and duties as set forth in Article VI, the Board and any committee thereof may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through the Company’s Officers or agents, and neither the Board nor any committee thereof shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid be responsible for any misconduct or negligence on the part of any such Officer or agent appointed by the Board or any committee thereof in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawgood faith.
(k) For purposes hereofTo the extent that, “Indemnitee” means at law or in equity, an Indemnitee has duties (aincluding fiduciary duties) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of and liabilities relating thereto to the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each casesuch Indemnitee, acting in such capacityconnection with the Company’s business or affairs, provided, that a person shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or otherwise modify the duties and liabilities of an Indemnitee otherwise existing at law or in equity, are agreed by reason the Members to replace such other duties and liabilities of providingsuch Indemnitee.
(l) Any amendment, modification or repeal of subsections (i), (j) (k) or (l) of this Section 9.01 shall be prospective only and shall not in any way affect the limitations on a fee-for-services basisliability under such subsections as in effect immediately prior to such amendment, trusteemodification or repeal with respect to claims arising from or relating to matters occurring, fiduciary in whole or custodial servicesin part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Indemnification. (a) A To the fullest extent permitted not prohibited by law but subject to the limitations expressly provided in applicable Law, and notwithstanding any contrary provision of this Agreement, each Indemnitee CalHR and Departments (as defined belowcollectively “Indemnitor”) shall be indemnified agree to fully indemnify, hold harmless and held harmless by the Company defend (collectively “Indemnification” or “Indemnify”) State Fund and its Personnel, from and against any and all lossesclaims, claimsactions, demands, damages, liabilities, joint or severalobligations, expenses (including legal fees and expenses)losses, settlements, judgments, fines, penalties, interestcharges, settlements costs, and expenses, including without limitation reasonable attorney’s fees and costs (collectively, “Claim”) arising out of, relating to, or other amounts arising from any and all claims, demands, actions, suits or proceedingsin connection with the Services of this Agreement, whether civilor not any Claim arises or results from the negligence of State Fund or any State Fund Personnel. B Claims, criminalfor purposes hereof shall include, administrative but are not limited to, Claims against State Fund by an indemnified Subcontractor to the extent (a) State Fund is contractually or investigativelegally obligated to indemnify the indemnified Subcontractor against such Claims, in which and (b) such Indemnitee may be involvedClaims arise out of, relate to, or is threatened to be involvedare in connection with any of the Services. C State Fund shall promptly notify the Indemnitor of any Claim following actual knowledge of such Claim, as a party or otherwise, by reason of its status as an Indemnitee; providedprovided however, that the Indemnitee failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except only to the extent that the Indemnitor is actually and materially prejudiced by such failure. For purposes hereof, notice received by CalHR shall be deemed received on its own behalf and on behalf of all relevant Departments as Indemnitor. In the event that any third party Claim is brought, the Indemnitor shall have the right to control the defense of such action with counsel of its choice, provided however, that (a) State Fund and any State Fund Personnel shall have the right to fully participate with its own counsel at its own expense; (b) State Fund and its Personnel shall not settle or compromise or otherwise dispose of any Claim without the prior written consent of Indemnitor, which shall not be indemnified unreasonably withheld or delayed; and held harmless if there has been a final and non-appealable judgment entered by a court (c) the Indemnitor shall not settle or compromise or otherwise dispose of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith any Claim unless such settlement or engaged in fraud, willful misconduct compromise or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall disposition either (i) be personally liable includes a full and final release and discharge from all Claims for such indemnification State Fund and all relevant State Fund Personnel, or (ii) have does not materially and adversely affect State Fund or any obligation State Fund Personnel not being fully released and discharged there under. D To facilitate the payment of any Claim for Indemnification hereunder Departments shall be billed in accordance with Exhibit B either as an Expenditure or through the Service Fees. E For the avoidance of doubt, the foregoing obligations to contribute Indemnify, hold harmless and defend any Claims against State Fund hereunder (a) shall survive any termination of, expiration of, or loan any monies or property to the Company to enable it to effectuate such indemnification.
withdrawal from this Agreement and (b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be are in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of affect any other Persons.
(i) No amendment, modification obligations or repeal undertakings of CalHR or the relevant Departments under this Section 17 Agreement or any provision hereof shall in any manner terminate, reduce other agreement between or impair among the right of any past, present Parties or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedtheir respective affiliates.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Master Agreement, Master Agreement, Master Agreement
Indemnification. (a) To the fullest extent permitted by law but subject The Purchaser shall, with respect to the limitations expressly provided in this Agreementany threatened, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against pending or completed action, claim, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, proceeding whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or that is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted associated with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions Indemnitees acting in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (way for or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests officer and/or director of the Company.
, absent bad faith or intentional misconduct (f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees“Proceeding”), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and indemnify Indemnitees to the fullest extent permitted by applicable lawlaw and the Certificate of Incorporation of the Company in effect on the date hereof or as such law or Certificate of Incorporation may from time to time be amended (but, in the case of any such amendment, only to the extent such amendment permits the Company to provide broader indemnification rights than the law or Certificate of Incorporation permitted the Company to provide before such amendment). Without in any way diminishing the scope of the indemnification provided by this Section 1.3, the Purchaser will indemnify Indemnitees to the full extent permitted by law if and wherever Indemnitees are or were parties or are threatened to be made a parties to any Proceeding, including any such Proceeding brought by or in the right of the Purchaser, by reason of the fact that Indemnitees are or were directors or officers of the Company or by reason of anything done or not done by Indemnitees in such capacities, against Expenses (as hereinafter defined) and Liabilities (as hereinafter defined) actually and reasonably incurred by Indemnitees or on their behalves in connection with the investigation, defense, settlement or appeal of such Proceeding. Notwithstanding the foregoing, the Purchaser shall be required to indemnify Indemnitees in connection with a Proceeding commenced by Indemnitees (other than a Proceeding commenced by Indemnitees to enforce Indemnitees’ rights under this Agreement) only if the commencement of such Proceeding was authorized by the Board of Directors.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) Whenever Indemnitees believes that Indemnitees are entitled to indemnification pursuant to this Agreement, Indemnitees shall submit a written claim for indemnification to the Purchaser. Any claim for indemnification shall include sufficient documentation or information reasonably available to Indemnitees explaining the entitlement to indemnification. In any person who event, Indemnitees shall submit Indemnitees’ claim for indemnification within a reasonable time, not to exceed five (5) years after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or its equivalent, or final termination, whichever is or was a Manager, Officer, employee, agent or trustee of the Company, and later date for which Indemnitee requests indemnification.
(c) Upon making a request for indemnification, Indemnitees shall be presumed to be entitled to indemnification under this Agreement and the Purchaser shall have the burden of proof to overcome that presumption in reaching any person who is contrary determination. The termination of any Proceeding by judgment, order, settlement, arbitration award or was serving at the request conviction, or upon a plea of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary nolo contendere or trustee of another person, in each case, acting in such capacity, provided, that a person its equivalent shall not be an Indemnitee affect this presumption or, except as determined by reason of providinga judgment or other final adjudication adverse to Indemnitees, on establish a fee-for-services basis, trustee, fiduciary or custodial servicespresumption with regard to any factual matter relevant to determining Indemnitees’ rights to indemnification hereunder.
Appears in 4 contracts
Samples: Common Stock Purchase Agreement (Wrasp 34 Inc), Common Stock Purchase Agreement (Wrasp 33, Inc), Common Stock Purchase Agreement (Wrasp 34 Inc)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this AgreementThe Company shall defend, indemnify and save harmless each Indemnitee (as defined below) shall be indemnified and held harmless by the Company Covered Person from and against any and all claims, losses, claims, damages, liabilitiescosts, expenses, demands, liabilities (joint or several), obligations, liens, encumbrances, expenses of any nature (including reasonable legal and accounting fees and expenses, costs of investigation and sums paid in settlement), judgments, fines, penalties, interest, settlements or and other amounts (“Indemnified Costs”) arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigativeinvestigative (“Proceedings”), in which such Indemnitee the Covered Person may be involved, or is threatened to be involved, involved as a party or otherwiseotherwise (including, but not limited to, derivative claims), sustained by reason of its status as an Indemnitee; providedany act performed, that the Indemnitee shall not or omitted to be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatperformed, in respect good faith and without gross negligence or willful misconduct, on behalf of the matter for which Company and reasonably believed by the Indemnitee Covered Person to be within the scope of the Covered Person’s authority expressly conferred by this LLC Agreement, regardless of whether such Person is seeking indemnification pursuant a Covered Person at the time any such Indemnified Cost is paid or incurred, to the fullest extent permitted by applicable law in effect on the effective date of this LLC Agreement and to such greater extent as applicable law may hereafter from time to time permit, except as otherwise provided in this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification10.1.
(b) To the fullest extent permitted by lawNotwithstanding Section 10.1(a), expenses (including legal fees and expensesi) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it no Covered Person shall be determined that the Indemnitee is not entitled to be indemnified as authorized in respect of (and this Section 17provision shall not reduce or limit the liability of a Covered Person with respect to) any Indemnified Cost incurred by that Covered Person by reason of the Covered Person’s fraud, intentional misconduct or bad faith violation of the implied contractual covenant of good faith and fair dealing or such Covered Person’s breach of this LLC Agreement or any other agreement with the Company to which the Covered Person is a party, (ii) the Company shall not indemnify any Covered Person in connection with a Proceeding (or part thereof) initiated by that Covered Person against the Company or any other Covered Person, whether by direct claim, counterclaim or otherwise, unless the initiation thereof was approved or ratified by the Members; and (iii) the Company shall not indemnify any Covered Person in connection with a Proceeding (or part thereof) initiated by the Company against the Covered Person, whether by direct claim, counterclaim or otherwise.
(c) Notwithstanding any other provision of this Section 10.1, the Company shall reimburse Indemnified Costs incurred by a Covered Person in connection with that Covered Person’s appearance as a witness on behalf of the Company or other participation at the request of the Company in a Proceeding involving or affecting the Company at a time when such Covered Person is not a named defendant or respondent in the Proceeding. The indemnification provided by this Section 17 10.1 shall be in addition to any other rights as to which an Indemnitee a Covered Person may be entitled under any agreementagreement (including any insurance policy), pursuant to any vote of or as shall have been approved or ratified by the Members, as a matter of law or otherwise, both as to actions an action in the IndemniteeCovered Person’s capacity as an Indemnitee a Covered Person, and as to actions an action in any other another capacity, and shall continue as to an Indemnitee a Covered Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteeeach Covered Person.
(d) The Indemnified Costs incurred by a Covered Person shall be paid by the Company may purchase and maintain (in advance of the final disposition of any related Proceeding upon receipt of an undertaking by or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of that Covered Person to repay such amount if it is ultimately determined that the Covered Person is not entitled to be indemnified by the Company Boardas authorized by this Section 10.1. For the avoidance of doubt, its Affiliates and such other Persons as the Company Board shall determinenot be required to advance Indemnified Costs for any matter or claim identified in Section 10.1(b), against any liability that but may be asserted against or expense that may be incurred by such Person in connection advance Indemnified Costs with the Company’s activities or such Person’s activities on behalf unanimous consent of the Company, regardless of whether the Company would have the power to indemnify Members for such Person against such liability under the provisions of this Agreementmatters or claims.
(e) For purposes of Any amounts payable by the Company according to this Section 17, 10.1 will be payable solely to the extent of funds available for the payment of such obligations and actually received by the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties pursuant to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries terms of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken Agreements, from capital contributions or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise from other activities permitted by the terms of this Agreement.
(h) Section 2.6. The provisions of Company’s obligations under this Section 17 are for 10.1 will not be a claim against the benefit Company if the Company does not have sufficient funds to make payment of such obligations. Any claim that a Covered Person may have at any time against the Company that it may seek to enforce under this LLC Agreement will be subordinate to the payment in full, including post-petition interest, if the Company becomes a debtor or debtor in possession in a case under any applicable federal or state bankruptcy, insolvency or other similar law now or later in effect or subject to any insolvency, reorganization, liquidation, rehabilitation or other similar proceedings, of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for claims of the benefit holders of any other Persons.
(i) No amendment, modification Securities which are collateralized or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified secured by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee assets of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (BMW Fs Securities LLC), Limited Liability Company Agreement (Financial Services Vehicle Trust), Limited Liability Company Agreement (BMW Fs Securities LLC)
Indemnification. (a) To Holdings shall indemnify Employee to the fullest extent permitted by Delaware law but subject to the limitations expressly provided in this Agreementagainst all costs, each Indemnitee expenses, liabilities and losses (as defined below) shall be indemnified and held harmless by the Company from and against any and all lossesincluding, claimswithout limitation, damages, liabilities, joint or several, expenses (including legal fees and expenses)attorneys' fees, judgments, fines, penalties, interestERISA liabilities, settlements excise taxes and amounts paid in settlement) reasonably incurred by Employee in connection with a Proceeding. For the purposes of this Section, a "Proceeding" shall mean any action, suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involvedEmployee is made, or is threatened to be involvedmade, as a party party, or otherwise, a witness by reason of its status the fact that he is or was an officer, director or employee of Holdings or is or was serving as an Indemnitee; providedofficer, director, member, employee, trustee or agent of any other entity at the request of Holdings.
(b) Holdings shall advance to Employee all reasonable and necessary costs and expenses incurred in connection with a Proceeding within 20 days after receipt by Holdings of a written request for such advance. Such request shall include an itemized list of the costs and expenses and an undertaking by Employee to repay to Holdings the amount of such advance if ultimately it shall be determined that the Indemnitee he is not entitled to be indemnified against such costs and expenses.
(c) Employee shall not be indemnified and held harmless entitled to indemnification under this Section unless Employee meets the standard of conduct specified under Delaware law. Notwithstanding the foregoing, to the extent permitted by law, neither Section 145(d) of the General Corporation Law of the State of Delaware nor any similar provision shall apply to indemnification under this Section, so that if there has been a final and non-appealable judgment entered Employee in fact meets the applicable standard of conduct (as ultimately determined by a court of competent jurisdiction determining that, or as ultimately determined by the arbitrator in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified arbitration pursuant to Section 17(a) in defending any claim16), demand, action, suit he shall be entitled to indemnification hereunder whether or proceeding shall, from time to time, be advanced not Holdings (whether by the Company Board of Directors of Holdings, the shareholders, independent legal counsel or other party) determines that such indemnification is proper or that he has met such applicable standard of conduct. Neither the failure of Holdings to have made such a determination prior to the final disposition commencement by Employee of such claim, demand, action, any suit or arbitration proceeding upon receipt seeking indemnification, nor a determination by Holdings that Employee has not met such applicable standard of conduct, shall create a presumption that Employee has not met the Company applicable standard of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteeconduct.
(d) The Company may purchase and maintain (Holdings shall be permitted to settle any Proceeding or reimburse Shipping Master claim in any manner other than as would impose liability on Employee for which he would not be entitled to indemnification or its Affiliates for the cost of) insuranceinsurance coverage hereunder. Employee shall not settle any proceeding without Holdings' prior written consent, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may which consent will not be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreementunreasonably withheld.
(e) For purposes of this Section 17, the Company Holdings shall maintain an insurance policy or policies providing directors' and officers' liability insurance. Employee shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance covered by it of such policy or policies, in accordance with its duties or their terms, to the Company also imposes duties on, maximum extent of coverage available for any director or otherwise involves services by, it to the plan or participants or beneficiaries officer of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the CompanyHoldings.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee Employee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit give Holdings prompt notice of any other Persons.
(i) No amendmentproceeding which may give rise to a claim for indemnification. Holdings shall have the right, modification or repeal of this Section 17 or any provision hereof shall in any manner terminateat its expense, reduce or impair to assume the right defense of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedproceeding.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Employment Agreement (Marquee Holdings Inc.), Employment Agreement (Marquee Holdings Inc.), Employment Agreement (Amc Entertainment Inc)
Indemnification. (a) To The Company agrees that if the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, Executive is made a party or is threatened to be involved, as made a party to any action, suit or otherwise, proceeding by reason of its status as an Indemnitee; providedthe fact that he is or was a director or officer of the Company (a "PROCEEDING"), that the Indemnitee he shall not be indemnified by the Company to the fullest extent authorized by Delaware law, consistent with the Company's certificate of incorporation (or charter) and held harmless if there has been a by-laws, against expenses, liabilities and losses reasonably incurred or suffered by the Executive in connection therewith; PROVIDED, HOWEVER:
(i) written notice of such Proceeding is given promptly to the Company by the Executive;
(ii) the Company is permitted to participate in and assume the defense of such Proceeding; and
(iii) such liability results from the final and non-appealable judgment entered by of a court of competent jurisdiction determining thator, in respect as a result of a settlement entered into with the prior written consent of the matter for which Company or is required (x) by such court as a bond, payment into escrow or similar payment, or (y) otherwise to forestall imminent attachment or similar process against any of the Indemnitee is seeking indemnification pursuant to this Section 17Executive's assets, the Indemnitee acted in bad faith or engaged in fraudand, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge PROVIDED FURTHER that the Indemnitee’s conduct Company agrees to indemnify the Executive if he seeks indemnification in connection with a Proceeding (or part thereof) initiated by the Executive only if such Proceeding (or part thereof) was unlawful; any indemnification pursuant to this Section 17 shall be made only out of authorized by the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationBoard.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior Notwithstanding anything to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized contrary in this Section 17.
SUBSECTION (ca) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17above, the Company shall be deemed under no obligation to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever indemnify the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it Executive with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest act or acts of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.Executive:
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right a knowing violation of any pastwritten agreement between the Executive and the Company;
(ii) for which a court, present or future Indemnitee having jurisdiction in the matter, determines that indemnification is not lawful; or
(iii) which a court, having jurisdiction in the matter, determines to be indemnified have been knowingly and fraudulently committed by the Company, nor Executive or which is the obligations result of willful misconduct by the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedExecutive.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Employment Agreement (Genesisintermedia Com Inc), Employment Agreement (Genesisintermedia Com Inc), Employment Agreement (Genesis Media Group Inc /De/)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 174.5, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 4.5 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to this Section 17(a) 4.5 in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 174.5.
(c) The indemnification provided by this Section 17 4.5 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master any Member or its Affiliates for the cost of) insurance, on behalf of the Company Boardany Member, its Affiliates and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 174.5, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a4.5(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject any of the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 4.5 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 4.5 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 4.5 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 4.5 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Golar LNG Partners LP), Limited Liability Company Agreement (Golar LNG LTD), Purchase and Sale Agreement (Golar LNG LTD)
Indemnification. (a) To the fullest extent permitted by law but subject to law, Parent shall indemnify, defend and hold harmless each Stockholder, and the limitations expressly provided in this Agreementtransferees, heirs, devisees, legatees, executors and administrators of such Stockholder (each Indemnitee (as defined belowan "Indemnified Party") shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees' fees and disbursements), judgments, fines and amounts paid in settlement with respect to any proceeding(collectively, appeal"Losses"), inquiry or investigation as incurred (payable monthly upon written request which request shall include reasonable evidence of the Losses set forth therein) to the full extent permitted arising from, relating to, or otherwise in respect of, any actual or threatened action, suit, proceeding or investigation, by or on behalf of any applicable portion stockholder of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) challenging a Stockholder's actions or omissions in respect of this Agreement or any person who is other Transaction Agreement, the Merger or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, any other Transactions; provided, however, that a person an Indemnified Party shall not be entitled to indemnification under this Section 4 for Losses arising out of actions or omissions by the Indemnified Party constituting (i) a breach of this Agreement or any other Transaction Agreement, (ii) criminal conduct or (iii) any violation of federal, state or foreign securities laws. In order to be entitled to indemnification under this Section 4, an Indemnitee Indemnified Party must give Parent prompt written notice of any third party claim which may give rise to any indemnity obligation under this Section 4, and Parent shall have the right to assume the defense of any such claim through counsel of its own choosing, subject to such counsel's reasonable judgment that separate defenses that would create a conflict of interest on the part of such counsel are not available. If Parent does not assume any such defense, Parent shall be liable for all costs and expenses of defending such claim incurred by reason the Indemnified Party, including attorneys' fees and disbursements, and shall advance such costs and expenses (subject to receipt of providingan undertaking by the Indemnified Party to repay amounts so advanced if it is ultimately determined that such Indemnified Party is not entitled to indemnification under this Section 4) to the Indemnified Party as set forth above. Parent shall not be liable under this Section 4 for any Losses resulting from any settlement, on a fee-for-services basiscompromise or offer to settle or compromise any such action, trusteesuit, fiduciary proceeding or custodial servicesinvestigation, without the prior written consent of Parent.
Appears in 4 contracts
Samples: Stockholder Agreement (Genovese Drug Stores Inc), Company Stockholder Agreement (Penney J C Co Inc), Stockholder Agreement (Genovese Leonard)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) Series shall be indemnified indemnify and held hold harmless by the Company all of such Series’ Indemnitees from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts (“Damages”) arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigativeinvestigative (“Claims”), in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its management of the affairs of such Series or by reason of its status as an IndemniteeIndemnitee of such Series, that relates to or arises out of such Series, its property, its business or its affairs; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 177.13, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.13 shall be made only out of the assets of the Companyindemnifying Series, it being agreed that that, except as provided in Section 11.7, no Member Partner shall (i) be personally liable for such indemnification or (ii) nor shall any Partner have any obligation to contribute or loan any monies or property to the Company such Series to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.13(a) in defending any claim, demand, action, suit or proceeding Claim shall, from time to time, be advanced by the Company indemnifying Series prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company such Series of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 177.13.
(c) The indemnification provided by this Section 17 7.13 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of a Majority in Interest of Partnership Interests, in the Memberscase of the Series AC and the Series LH, or a Supermajority Interest of the Partnership Interests, in the case of the Series EA and the Series ME, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Any Series may purchase and maintain (or reimburse Shipping Master such Series’ General Partners or its their Affiliates for the cost of) insurance, on behalf of the Company Boardsuch Series’ General Partners, its their Affiliates and such other Persons as the Company Board such Series’ General Partners shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s such Series’ activities or such Person’s activities on behalf of the Companysuch Series, regardless of whether the Company such Series would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members any Partner to personal liability by reason of the indemnification provisions set forth in this Agreement.
(gf) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.13 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this AgreementAgreement with respect to the indemnifying Series.
(hg) The provisions of this Section 17 7.13 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 7.13 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Companya Series, nor the obligations of the Company such Series to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.13 as in effect immediately prior to such amendment, modification or repeal with respect to claims Claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims Claims may arise or be asserted.
(ji) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion The provisions of this Section 17 that 7.13 shall not have been invalidated and be construed to limit the power of any Series to indemnify an Indemnitee of such Series to the fullest extent permitted by applicable law or to enter into specific agreements, commitments or arrangements for indemnification permitted by law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) . The absence of any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person express provision for indemnification herein shall not be an Indemnitee by reason limit any right of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesindemnification existing independently of this Section 7.13.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Enbridge Energy Partners Lp), Limited Partnership Agreement (Enbridge Energy Partners Lp), Contribution Agreement (Enbridge Energy Partners Lp)
Indemnification. (a) To the fullest extent permitted by law but law, the Fund will, subject to the limitations expressly provided in Section 12(c) of this Agreement, indemnify the Investment Manager (including for this purpose each Indemnitee officer, director, member, partner, principal, employee or agent of, or any person who controls, is controlled by or is under common control with, the Investment Manager, and their respective executors, heirs, assigns, successors or other legal representatives) (each such person being referred to as defined belowan "indemnitee") shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, costs and expenses (including legal "Losses," and individually, a "Loss") arising by reason of being or having been Investment Manager to the Fund, or the past or present performance of services to the Fund in accordance with this Agreement by the indemnitee, except to the extent that the Loss has been determined in a final judicial decision on the merits from which no further right of appeal may be taken in any action, suit, investigation or other proceeding, whether civil or criminal ("Action"), to have been incurred or suffered by the indemnitee by reason of willful misfeasance, bad faith, negligence, or reckless disregard of the duties involved in the conduct of the indemnitee's office ("disabling conduct"). Losses include, but are not limited to, amounts paid in satisfaction of judgments, in compromise, or as fines or penalties, and counsel fees and expenses)expenses incurred in connection with the defense or disposition of any Action before any judicial, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminalarbitral, administrative or investigativelegislative body, in which such Indemnitee the indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwise, by reason or with which the indemnitee may be or may have been threatened, while in office or thereafter. The rights of its status indemnification provided under this Section 12 are not to be construed so as to provide for indemnification of an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining indemnitee for any liability (including liability under U.S. federal securities laws that, under certain circumstances, impose liability even on persons that act in respect good faith) to the extent (but only to the extent) that indemnification of such liability would be in violation of applicable law, but will be construed so as to effectuate the matter for which the Indemnitee is seeking indemnification pursuant to applicable provisions of this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification12.
(b) To the fullest extent permitted by lawExpenses, expenses (including legal counsel fees and expenses) , incurred by an Indemnitee who is indemnified pursuant to Section 17(aany indemnitee (but excluding amounts paid in satisfaction of judgments, in compromise, or as fines or penalties) in defending any claim, demand, action, suit or proceeding shall, may be paid from time to time, be advanced time by the Company prior to Fund in advance of the final disposition of such claim, demand, action, suit or proceeding any Action upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee indemnitee to repay such to the Fund amounts paid if a determination is made that indemnification of the expenses is not authorized under Section 12(a) of this Agreement, so long as (1) the indemnitee provides security for the undertaking, (2) the Fund is insured by or on behalf of the indemnitee against Losses arising by reason of the indemnitee's failure to fulfill his, her or its undertaking, or (3) a majority of the directors (each, a "Director," and collectively, the "Directors") of the Fund who are not "interested persons" (as that term is defined in the 1940 Act) ("Independent Directors") (excluding any Director who is either seeking advancement of expenses under this Agreement or is or has been a party to any other Action involving claims similar to those involved in the Action giving rise to a claim for advancement of expenses under this Agreement) or independent legal counsel in a written opinion determines, based on a review of readily available facts (as opposed to a full trial-type inquiry), that reason exists to believe that the indemnitee ultimately will be entitled to indemnification.
(c) With respect to the disposition of any Action (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final decision on the merits by a court, or by any other body before which the Action has been brought, that an indemnitee was liable to the Fund or its Members by reason of disabling conduct, indemnification will be provided in accordance with Section 12(a) of this Agreement if (1) the indemnification is approved as in the best interests of the Fund by a majority of the Independent Directors (excluding any Director who is either seeking indemnification under this Agreement or is or has been a party to any other Action involving claims similar to those involved in the Action giving rise to a claim for indemnification under this Agreement) upon a determination, based upon a review of readily available facts (as opposed to a full trial-type inquiry), that the indemnitee acted in good faith and in the reasonable belief that the actions were in the best interests of the Fund and that the indemnitee is not liable to the Fund or its Members by reason of disabling conduct, or (2) the Directors secure a written opinion of independent legal counsel, based upon a review of readily available facts (as opposed to a full trial-type inquiry), to the effect that indemnification would not protect the indemnitee against any liability to the Fund or its Members to which the indemnitee would otherwise be subject by reason of disabling conduct.
(d) Any indemnification or advancement of expenses made in accordance with this Section 12 will not prevent the recovery from any indemnitee of any amount if the indemnitee subsequently is determined in a final judicial decision on the merits in any Action involving the liability or expense that gave rise to the indemnification or advancement of expenses to be liable to the Fund or its Members by reason of disabling conduct. In any suit brought by an indemnitee to enforce a right to indemnification under this Section 12, it shall will be determined a defense that the Indemnitee indemnitee has not met the applicable standard of conduct described in this Section 12. In any suit in the name of the Fund to recover any indemnification or advancement of expenses made in accordance with this Section 12 the Fund will be entitled to recover the expenses upon a final adjudication from which no further right of appeal may be taken. In any suit brought to enforce a right to indemnification or to recover any indemnification or advancement of expenses made in accordance with this Section 12, the burden of proving that the indemnitee is not entitled to be indemnified as authorized indemnified, or to any indemnification or advancement of expenses, under this Section 12 will be on the Fund (or on any Member acting derivatively or otherwise on behalf of the Fund or its Members).
(e) An indemnitee may not satisfy any right of indemnification or advancement of expenses granted in this Section 1712 or to which he, she or it may otherwise be entitled except out of the assets of the Fund, and no Member will be personally liable with respect to any such claim for indemnification or advancement of expenses.
(cf) The rights of indemnification provided by in this Section 17 shall 12 will not be in addition to exclusive of or affect any other rights to which an Indemnitee any person may be entitled by contract or otherwise under any agreement, pursuant to any vote law. Nothing contained in this Section 12 will affect the power of the Members, as a matter of law or otherwise, both as Fund to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, liability insurance on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against Investment Manager or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Personsindemnitee.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Investment Management Agreement (Jp Morgan Multi-Strategy Fund LLC), Investment Management Agreement (Jp Morgan Multi-Strategy Fund LLC), Investment Management Agreement (J P Morgan Atlas Global Long / Short Equity Fund LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to under the limitations expressly provided in Act:
(a) no Member (for purposes of this AgreementSection, each Indemnitee (as defined belowan “Indemnified Person”) shall be indemnified and held harmless by liable to the Company for any loss, claim, damage, or expense incurred by reason of any action taken or omitted to be taken by such Indemnified Person; provided, that the foregoing shall not relieve the Indemnified Person from liability for any loss, claim, damage, or expense that is determined by a final judgment of a court of competent jurisdiction to be primarily attributable to such Indemnified Person’s bad faith or gross negligence.
(b) the Company shall indemnify and hold harmless the Indemnified Person from and against any and all liabilities, obligations, losses, claims, damages, liabilitiesfines, joint or several, expenses taxes (including legal fees and expensesinterest and penalties thereon), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedingssuits, proceedings (whether civil, criminal, administrative or administrative, investigative, or otherwise), costs, expenses, and disbursements (including legal and accounting fees and expenses, costs of investigation, and sums paid in settlement) of any kind or nature whatsoever (“Damages”) which such Indemnitee may be involvedimposed on, incurred by, or is threatened asserted at any time against such Indemnified Person in any way related to be involved, as a party or otherwise, by reason arising out of its status as an Indemniteethis Agreement or the business or affairs of the Company; provided, that the Indemnitee no Indemnified Person shall not be indemnified and held harmless entitled to indemnification hereunder if there has it shall have been determined by a final and non-appealable judgment entered by of a court of competent jurisdiction determining that, in respect of that the matter for which the Indemnitee is seeking indemnification pursuant Damages are primarily attributable to this Section 17, the Indemnitee acted in such Indemnified Person’s bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationnegligence.
(bc) To the fullest extent permitted by law, Company shall pay the expenses (including reasonable legal fees and expensesexpenses and costs of investigation) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) Indemnified Person in defending any claim, demand, action, suit suit, or proceeding shall, from time to time, be advanced described in section (b) above as such expenses are incurred by the Company prior to such Indemnified Person and in advance of the final disposition of such claimmatter, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee provided that such Indemnified Person undertakes to repay such amount expenses if it shall be is determined by a final judgment of a court of competent jurisdiction that the Indemnitee such Indemnified Person is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, section (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesabove.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Cedar Fair Southwest, Inc.), Limited Liability Company Agreement (Cedar Fair Southwest, Inc.), Limited Liability Company Agreement (Cedar Fair Southwest, Inc.)
Indemnification. (a) To the fullest extent permitted by law Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its such person’s status as an Indemnitee; provided, however that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.6, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any provided, further, no indemnification pursuant to this Section 17 6.6 shall be available to the Members or their Affiliates (other than the MLP and any Group Member) with respect to its or their obligations incurred pursuant to the Underwriting Agreement. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 6.6 shall be made only out of the assets of the Company, it being agreed that no a Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(bi) To the fullest extent permitted by law, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.6(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.6.
(cii) The Company shall, to the fullest extent permitted under the Act, pay or reimburse expenses incurred by an Indemnitee in connection with the Indemnitee’s appearance as a witness or other participation in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding.
(b) The indemnification provided by this Section 17 6.6 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(dc) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Boardmembers of the Board of Directors, its Affiliates the Officers and such other Persons as the Company Board of Directors shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(ed) For purposes of this Section 176.6, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a6.6(a); and action taken or omitted by it the Indemnitee with respect to any an employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(ge) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.6 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hf) The provisions of this Section 17 6.6 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ig) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.
(jh) If this Section 17 Any act or any portion hereof shall be invalidated omission performed or omitted by an Indemnitee on any ground advice of legal counsel or an independent consultant who has been employed or retained by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant be presumed to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawperformed or omitted in good faith without gross negligence or willful misconduct.
(ki) For purposes hereofTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.6 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesFAULT OR OTHER CONDUCT.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (QR Energy, LP), Limited Liability Company Agreement (QR Energy, LP), Limited Liability Company Agreement (Energy Transfer Equity, L.P.)
Indemnification. (a) To The Bank shall indemnify the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and Director to the fullest extent permitted by applicable law.
law and regulations and the charter and bylaws of the Bank in effect on the date hereof or as such laws, regulations, or charter and bylaws may from time to time be amended (k) For purposes hereofbut, “Indemnitee” means (a) in the Company Boardcase of any such amendment, (b) only to the extent such amendment permits the Bank to provide broader indemnification rights than applicable laws and regulations or the charter or bylaws of the Bank permitted the Bank to provide immediately prior to such amendment). The right to indemnification conferred in the charter and bylaws of the Bank shall be presumed to have been relied upon by the Director in serving or continuing to serve the Bank and shall be enforceable hereunder as a contract right. In addition to any person who other rights of indemnification that the Director may have, the Bank hereby agrees to indemnify and hold harmless the Director whenever he or she is or was a Managerparty or is threatened to be made a party to any Proceeding, Officer, employee, agent including without limitation any Proceeding brought by or trustee in the right of the CompanyBank, against Expenses and Liabilities actually and reasonably incurred by the Director or on his or her behalf in connection with such Proceeding if such Director acted in good faith and in a manner the Director reasonably believed to be in or not opposed to the best interests of the Bank, and (c) with respect to any person who is criminal action or proceeding, had no reasonable cause to believe the Director’s conduct was serving at unlawful; except that, with respect to any Proceeding brought by or in the request right of the Company Board Bank as a memberto which such Director shall have been adjudged to be liable to the Bank, partnerno indemnification shall be made unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, director, officer, employee, partner, agent, fiduciary or trustee despite the adjudication of another person, liability but in each view of all the circumstances of the case, acting in such capacity, Director is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper; provided, however, that any amounts paid in settlement shall have been first approved by the Bank in writing (with such approval not to be unreasonably withheld), with any disagreements between the parties hereto as to the reasonableness thereof to be resolved pursuant to Section 5 hereof. No initial finding by the Board, its counsel, Independent Counsel, arbitrators or the members of the Bank shall be effective to deprive the Director of the protection of this indemnity, nor shall a person court to which the Director may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it, as it is intended that the Director shall not be an Indemnitee paid promptly by reason the Bank all amounts necessary to effectuate the foregoing indemnity in full. The rights of providingindemnification of the Director provided under this Agreement shall include, on a fee-for-services basiswithout limitation, trusteethose rights set forth in Sections 4, fiduciary or custodial services7 and 8 below.
Appears in 4 contracts
Samples: Indemnification Agreement (Federal Home Loan Bank of San Francisco), Indemnification Agreement (Federal Home Loan Bank of San Francisco), Indemnification Agreement (Federal Home Loan Bank of San Francisco)
Indemnification. (a) To the fullest extent permitted by law but subject Borrower hereby indemnifies and agrees to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified hold harmless and held harmless by the Company defend all Indemnified Persons from and against any and all lossesIndemnified Claims. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED CLAIMS ARE IN ANY WAY OR TO ANY EXTENT OWED, claimsIN WHOLE OR IN PART, damagesUNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, liabilitiesOR ARE CAUSED, joint IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY INDEMNIFIED PERSON, but shall exclude any of the foregoing resulting from such Indemnified Person's gross negligence or severalwillful misconduct. If Borrower or any third party ever alleges any gross negligence or willful misconduct by any Indemnified Person, expenses (including legal fees and expenses)the indemnification provided for in this Section shall nonetheless be paid upon demand, judgmentssubject to later adjustment or reimbursement, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which until such Indemnitee may be involved, or is threatened to be involved, time as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatenters a final judgment as to the extent and affect of the alleged gross negligence or willful misconduct. Upon notification and demand, Borrower agrees to provide defense of any Indemnified Claim and to pay all costs and expenses of counsel selected by any Indemnified Person in respect of thereof. Any Indemnified Person against whom any Indemnified Claim may be asserted reserves the matter for which right to settle or compromise any such Indemnified Claim as such Indemnified Person may determine in its sole discretion, and the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition obligations of such claimIndemnified Person, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreementany, pursuant to any vote of the Members, as a matter of law such settlement or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company compromise shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” included within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth Indemnified Claims. Except as specifically provided in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) Section, Borrower waives all notices from any Indemnified Person. The provisions of this Section 17 are for shall survive the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal termination of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedAgreement.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Loan Agreement (Karts International Inc), Loan Agreement (Karts International Inc), Loan Agreement (Karts International Inc)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee acting (or omitting or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if pursuant to this Agreement to the extent that there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.2 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified entitled to indemnification pursuant to this Section 17(a) 7.2 in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.2, the Indemnitee is not entitled to be indemnified upon written request by such claim, demand, action, suit or proceeding upon Indemnitee and receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.2.
(c) The indemnification provided by this Section 17 7.2 shall be in addition to any other rights to which an Indemnitee may be entitled under this Agreement, any other agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain insurance (or reimburse Shipping Master the Sole Member or its Affiliates for the cost of) insurance), on behalf of the Company BoardCompany, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s or any of its Affiliates’ activities or such Person’s activities on behalf of the CompanyCompany or any of its Affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, 7.2: (i) the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.2(a); and (iii) action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.2 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.2 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.2 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.2 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 7.2(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 7.2 ARE INTENDED BY THE SOLE MEMBER TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (8point3 Energy Partners LP), Limited Liability Company Agreement (8point3 Energy Partners LP)
Indemnification. (a) To the fullest extent permitted by law Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its such person’s status as an Indemnitee; provided, however that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.06, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any provided, further, no indemnification pursuant to this Section 17 6.06 shall be available to the Members or their Affiliates (other than the MLP and any Group Member) with respect to its or their obligations incurred pursuant to the Underwriting Agreement, the Omnibus Agreement or the Contribution Agreement. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 6.06 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.06(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.06.
(c) The indemnification provided by this Section 17 6.06 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Boardmembers of the Board of Directors, its Affiliates the Officers and such other Persons persons as the Company Board of Directors shall determine, against any liability that may be asserted against or expense that may be incurred by such Person person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 176.06, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a6.06(a); and action taken or omitted by it the Indemnitee with respect to any an employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.06 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 6.06 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 6.06 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.06 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.
(ji) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.06 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (DCP Midstream Partners, LP), Limited Liability Company Agreement (Eagle Rock Energy Partners, L.P.), Limited Liability Company Agreement (DCP Midstream Partners, LP)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.1 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawApplicable Law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 9.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 179.1.
(c) The indemnification provided by this Section 17 9.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of this Section 17(a)9.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 9.1 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No Any amendment, modification or repeal of this Section 17 9.1 or any provision hereof shall be prospective only and shall not in any manner way terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 9.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Ocean Rig Partners LP), Limited Liability Company Agreement (Valero Energy Partners Lp)
Indemnification. (a) To the fullest extent permitted The Company shall indemnify any person (each, an “Indemnitee”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding brought by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by or against the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedingsotherwise, whether civil, criminal, administrative or investigative, including, without limitation, any action by or in which such Indemnitee may be involved, or is threatened the right of the Company to be involved, as procure a party or otherwisejudgment in its favor, by reason of its status as the fact that such Indemnitee is or was a Member or an Indemnitee; providedofficer of the Company, or at the relevant time, being or having been a Member or officer, that such Indemnitee is or was serving at the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect request of the matter for which Company as a partner, director, officer or trustee of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, against all expenses (including attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such Indemnitee in connection with such action, suit or proceeding. Notwithstanding the foregoing, no indemnification shall be provided to or on behalf of any Indemnitee is seeking indemnification pursuant if a judgment or other final adjudication adverse to this Section 17, the such Indemnitee acted establishes that (i) such Indemnitee’s acts were committed in bad faith or engaged in fraud, willful misconduct or gross negligence orwere the result of active and deliberate dishonesty and, in either case, were material to the case cause of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification action so adjudicated or (ii) have any obligation such Indemnitee in fact personally gained a financial profit or other advantage to contribute or loan any monies or property to the Company to enable it to effectuate which such indemnificationIndemnitee was not legally entitled.
(b) To the fullest extent permitted by law, The Company may pay expenses (including legal fees and expenses) incurred by an any Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to described in Section 14(a) in advance of the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any an undertaking by or on behalf of the such Indemnitee to repay such amount advance if it shall ultimately be determined that the such Indemnitee is not entitled to be indemnified as authorized in by the Company pursuant to this Section 1714.
(c) The indemnification provided by this Section 17 14 shall not be in addition to deemed exclusive of any other rights to indemnification to which an Indemnitee those seeking indemnification may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law agreement or otherwise. The rights to indemnification and reimbursement or advancement of expenses provided by, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacityor granted pursuant to, and this Section 14 shall continue as to an Indemnitee who has ceased to serve in such capacity be a Member or an officer of the Company (or other person indemnified hereunder) and shall inure to the benefit of the heirsexecutors, successorsadministrators, assigns legatees and administrators distributees of the Indemniteesuch person.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Rykomusic, Inc.), Limited Liability Company Agreement (Rykomusic, Inc.), Limited Liability Company Agreement (Rykomusic, Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 175.10, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 5.10 shall be made only out of the assets of the Company, it being agreed that no the Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a5.10(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 5.10, demand, action, suit or proceeding that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 175.10.
(c) The indemnification provided by this Section 17 5.10 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the Member or its Affiliates for the cost of) insurance, on behalf of the Company BoardDirectors, the Officers, the Member, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 175.10, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a5.10(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 5.10 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 5.10 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof 5.10 shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 5.10 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Oasis Midstream Partners LP), Contribution and Simplification Agreement (Oasis Petroleum Inc.), Contribution and Simplification Agreement (Oasis Midstream Partners LP)
Indemnification. (a) To From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, to the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementunder applicable Law, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costspresent and former director and officer of the Company (collectively, charges and the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to any facts or events existing or occurring at or prior to the Effective Time (including the Merger); provided, however, that the foregoing obligation to indemnify the Indemnified Parties shall not apply to any claims, actions, suits, proceedings or investigations for which the Company is prohibited from providing indemnification under the CRS or the Company’s articles of incorporation or bylaws. From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, advance expenses (including the costs and expenses of any investigation or preparation incurred in connection therewith) to an Indemnified Party, as incurred, to the fullest extent permitted under applicable Law. In the event of any such claim, action, suit, proceeding or investigation arising after the Effective Time, (i) the Indemnified Parties shall promptly notify Parent, Purchaser or the Surviving Corporation thereof, provided, however, that failure to provide such notice shall relieve Parent, Purchaser or the Surviving Corporation of its indemnification obligation only to the extent that Parent, Purchaser or the Surviving Corporation, as the case may be, is actually prejudiced thereby, (ii) none of Parent, Purchaser or the Surviving Corporation shall be obligated to pay for more than one (1) firm of counsel for all Indemnified Parties, except to the extent that (A) an Indemnified Party has been advised by counsel that there are conflicting interests between it and any other Indemnified Party, or (B) local counsel, in addition to such other counsel, is required to effectively defend against such action or proceeding, and (iii) none of Parent, Purchaser or the Surviving Corporation shall be liable for any settlement effected without its written consent, which shall not be unreasonably withheld, conditioned or delayed. None of Parent, Purchaser or the Surviving Corporation shall have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and not subject to appeal) that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(b) Parent shall, or shall cause the Surviving Corporation to obtain or maintain in effect tail policies to the Company’s current directors’ and officers’ liability insurance, which tail policies (i) shall be effective for a period of six years after the Effective Time with respect to any proceeding, appeal, inquiry claims arising from acts or investigation omissions occurring prior to the full extent permitted Effective Time with respect to those persons who are currently covered by the Company’s directors’ and officers’ liability insurance and (ii) shall contain terms with respect to coverage and amount no less favorable, in the aggregate, than those of such policy or policies as in effect on the date hereof. Notwithstanding the immediately preceding sentence, if the tail polices described in the immediately preceding sentence cannot be maintained or obtained or can only be maintained or obtained by paying aggregate premiums in excess of 150% of the aggregate annual amount currently paid by the Company for such coverage, the Surviving Corporation shall only be required to provide as much coverage as can be maintained or obtained by paying aggregate premiums equal to 150% of the aggregate annual amount currently paid by the Company for such coverage. The current policies of directors’ and officers’ liability insurance maintained by the Company with respect to claims arising from or related to facts or events that occurred at or before the Effective Time until the expiration of such insurance policies pursuant to the terms thereof.
(c) If Parent or the Surviving Corporation or any applicable portion of their respective successors or assigns (i) shall consolidate with or merge with or into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties or assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations of Parent and the Surviving Corporation set forth in this Section 6.05.
(d) The parties hereto intend that the provisions of this Section 17 6.05 be for the benefit of, and will be enforceable by, each Indemnified Party and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Indemnified Person may have by contract or otherwise.
(e) The rights of the Indemnified Parties under this Section 6.05 shall not be in addition to any rights such Indemnified Parties may have been invalidated under the organizational and governance documents of the Company or any Company Subsidiary, or under any applicable agreements or other documents or Laws. Parent, Purchaser and the Surviving Corporation hereby agree that all provisions relating to exculpation, advancement of expenses and indemnification for acts or omissions occurring prior to the Effective Time existing in favor of an Indemnified Party as provided in the organizational and governance documents of the Company or any Company Subsidiary, or under any applicable agreements or documents, shall remain in full force and effect, and Parent and the Surviving Corporation shall continue to honor such provisions, for a period of the lesser of: (i) the remaining term of any such applicable agreement or document, or (ii) six (6) years commencing at the Effective Time to the fullest extent permitted by applicable lawLaw.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Merger Agreement (VCG Holding Corp), Merger Agreement (Lowrie Management LLLP), Merger Agreement (VCG Holding Corp)
Indemnification. The Company shall indemnify the Depositary, any Depositary’s Agent and any Registrar for, and hold each of them harmless from and against, any loss, liability, claim (awhether with or without basis in fact or law), demand, cost or expense (collectively, “Loss”) To arising out of or in connection with, its acting as Depositary, Depositary’s Agent or Registrar, respectively, under this Deposit Agreement and the fullest extent permitted by law but subject Receipts or this appointment, including the reasonable costs and expenses of defending itself against any Loss or enforcing this Deposit Agreement, except to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) extent that such Loss shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has have been a final and non-appealable judgment entered determined by a court of competent jurisdiction determining that, in respect to be a result of the matter for which Depositary’s, Depositary’s Agent or any Registrar’s negligence or intentional misconduct. The Depositary shall indemnify the Indemnitee is seeking indemnification pursuant to this Section 17Company for, the Indemnitee acted in bad faith or engaged in fraudand hold it harmless from and against, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only Loss arising out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Companyservices provided by the Depositary, Depositary’s activities Agent and any Registrar under this Deposit Agreement or this appointment, including the reasonable costs and expenses of defending itself against any Loss or enforcing this Deposit Agreement to the extent that such Person’s activities on behalf Loss shall have been determined by a court of competent jurisdiction to be a result of the CompanyDepositary’s, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
Depositary’s Agent or any Registrar’s negligence or intentional misconduct. If a party (e“Indemnitor”) For purposes of this Section 17, the Company shall be deemed obligated to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties provide indemnification for any Loss to the Company also imposes duties onother party (“Indemnitee”), or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan such Indemnitor shall be deemed entitled to be for a purpose assume the defense of such Loss with counsel approved by the Indemnitee (which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee approval shall not be denied indemnification in whole unreasonably withheld or in part under this Section 17 because the delayed) upon delivery to Indemnitee had an interest in the transaction with respect of written notice of Indemnitor’s election to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemniteesdo so, their heirs, successors, assigns and administrators and provided that Indemnitor shall not be deemed entitled to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any assume such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means defense if (a) the Company Board, Indemnitee has reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to Indemnitor or (b) any person who there is a conflict or was a Manager, Officer, employee, agent or trustee potential conflict of the Company, interest between Indemnitor and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesIndemnitee.
Appears in 3 contracts
Samples: Deposit Agreement (Developers Diversified Realty Corp), Deposit Agreement (Developers Diversified Realty Corp), Deposit Agreement (Developers Diversified Realty Corp)
Indemnification. (a) A. To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilitiesLiabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Partnership; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) B. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) 7.7.A for appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) C. The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the such Indemnitee.
(d) D. The Company Partnership may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates Indemnitees and such other Persons as the Company Board General Partner shall determine, against any liability Liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability Liability under the provisions of this Agreement.
(e) E. For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested that an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it such Indemnitee of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it such Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of as such term is used in Section 17(a)7.7.A; and any action taken or omitted by it such Indemnitee with respect to any employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the such plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) F. In no event may an Indemnitee subject the Members Limited Partners to personal liability Liability by reason of the indemnification provisions set forth in this Agreement.
(g) G. An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 solely because the such Indemnitee had an interest in the transaction with respect to which the such indemnification applies if the transaction was otherwise permitted by the terms of this Agreementapplies.
(h) H. The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) . No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) I. If this Section 17 and to the extent any reimbursements to the General Partner or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified MGP pursuant to this Section 17 7.7 constitute gross income of the General Partner or MGP (as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation opposed to the full extent permitted repayment of advances made by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is General Partner or was a Manager, Officer, employee, agent or trustee MGP on behalf of the CompanyPartnership) such amounts shall constitute guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason treated as distributions for purposes of providingcomputing the Partners’ Capital Accounts.
J. This Section 7.7 is intended solely to define the parties’ rights and obligations concerning indemnification, and this Section 7.7 is not intended to impose any new or different obligations or standards of conduct on a fee-for-services basis, trustee, fiduciary or custodial servicesany Indemnitee.
Appears in 3 contracts
Samples: Limited Partnership Agreement (MGM Growth Properties LLC), Limited Partnership Agreement (MGM Growth Properties LLC), Limited Partnership Agreement (MGM Growth Properties LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 175.10, the Indemnitee acted in bad faith or faith, engaged in fraud, fraud or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 5.10 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a5.10(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 5.10, demand, action, suit or proceeding that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 175.10.
(c) The indemnification provided by this Section 17 5.10 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the Sole Member or its Affiliates for the cost of) insurance, on behalf of the Company BoardDirectors, the Officers, the Sole Member, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board Sole Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 175.10, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a5.10(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 5.10 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 5.10 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof 5.10 shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 5.10 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Sprague Resources LP), Limited Liability Company Agreement (Hartree Bulk Storage, LLC), Limited Liability Company Agreement (Sprague Resources LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.4, the Indemnitee acted in bad faith or engaged in fraud, fraud or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 6.4 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the Partners shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to this Section 17(a) 6.4 in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.4.
(c) The indemnification provided by this Section 17 6.4 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master any Partner or its Affiliates for the cost of) insurance, on behalf of the Company Boardany Partner, its Affiliates and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 176.4, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a6.4(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject any of the Members Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.4 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 6.4 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 6.4 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Seadrill Partners LLC), Limited Partnership Agreement (Seadrill Partners LLC), Limited Partnership Agreement (Seadrill Partners LLC)
Indemnification. (a) To In accordance with the fullest extent permitted by law but subject to provisions of subsection (b) of this Section 1, the limitations expressly provided in this Agreement, each Trust shall hold harmless and indemnify the Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all lossesexpenses, claimsliabilities and losses (including, damageswithout limitation, liabilities, joint or several, investigation expenses (including legal and expert witnesses' and attorneys' fees and expenses), judgments, penalties, fines, penalties, interest, settlements ERISA excise taxes and amounts paid or to be paid in settlement) actually incurred by the Indemnitee (net of any related insurance proceeds or other amounts arising from received by the Indemnitee or paid by or on behalf of the Trust on the Indemnitee's behalf), in connection with any and all claimsaction, demandssuit, actionsarbitration or proceeding (or any inquiry or investigation, suits whether brought by or proceedingsin the right of the Trust or otherwise, that the Indemnitee in good faith believes might lead to the institution of any such action, suit, arbitration or proceeding), whether civil, criminal, administrative or investigative, or any appeal therefrom, in which such the Indemnitee may be involvedis a party, or is threatened to be involvedmade a party, as is a party witness or otherwiseis participating (a "Proceeding") based upon, arising from, relating to or by reason of its status as an Indemnitee; providedthe fact that Indemnitee is, that the Indemnitee was, shall not be indemnified and held harmless if there has or shall have been a final and trust manager and/or officer of the Trust or is or was serving, shall serve, or shall have served at the request of the Trust as a trust manager, officer, partner, trustee, employee or agent ("Affiliate Indemnitee") of another foreign or domestic corporation or non-appealable judgment entered by a court of competent jurisdiction determining thatprofit corporation, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17cooperative, the Indemnitee acted in bad faith partnership, joint venture, trust or engaged in fraud, willful misconduct other incorporated or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationunincorporated enterprise.
(b) To In providing the foregoing indemnification, the Trust shall, with respect to a Proceeding, hold harmless and indemnify the Indemnitee to the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced required by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated Texas Statute and to the fullest extent permitted by applicable lawthe Express Permitted Indemnification Provisions (as hereinafter defined) of the Texas Statute. For purposes of this Agreement, the Express Permitted Indemnification Provisions of the Texas Statute shall mean indemnification as permitted by Section 9.20 of the Texas Statute or by any amendment thereof or other statutory provisions expressly permitting such indemnification which is adopted after the date hereof (but, in the case of any such amendment, only to the extent that such amendment permits the Trust to provide broader indemnification rights than said law required or permitted the Trust to provide prior to such amendment).
(kc) For purposes hereof, “Indemnitee” means (a) Without limiting the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee generality of the Companyforegoing, the Indemnitee shall be entitled to the rights of indemnification provided in this Section 1 for any expenses, liabilities and losses actually incurred in any Proceeding initiated by or in the right of the Trust, provided that in the event that the Indemnitee shall have been adjudged to be liable to the Trust or shall have been adjudged liable on the basis that personal benefit was improperly received by the Indemnitee, indemnification (i) is limited to reasonable expenses actually incurred by the Indemnitee in connection with the Proceeding; and (cii) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an made in respect of any Proceeding in which the person shall have been found liable for wilful or intentional misconduct in the performance of his duty to the Trust.
(d) If the Indemnitee is entitled under this Agreement to indemnification by reason the Trust for some or a portion of providingthe Indemnified Amounts (as hereinafter defined) but not, on a fee-for-services basishowever, trusteefor all of the total amount thereof, fiduciary or custodial servicesthe Trust shall nevertheless indemnify the Indemnitee for the portion thereof to which Indemnitee is entitled.
Appears in 3 contracts
Samples: Indemnification Agreement (American Industrial Properties Reit Inc), Indemnification Agreement (Palace Reit), Indemnification Agreement (United Investors Realty Trust)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any provided further, no indemnification pursuant to this Section 17 12.01 shall be available to the Members or their Affiliates (other than a Group Member) with respect to its or their obligations incurred pursuant to (i) the Contribution, Purchase and Sale Agreement or (ii) the SemStream Contribution Agreement (other than obligations incurred by such Member on behalf of the Company). Any indemnification pursuant to this Section 12.01 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a12.01 (a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 12.01, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 1712.01.
(c) The indemnification provided by this Section 17 12.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of (i) Members owning (in the Membersaggregate) a Majority Interest or (ii) of the Board, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company BoardCompany, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s or any of its Affiliate’s activities or such Person’s activities on behalf of the CompanyCompany or any of its Affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 1712.01, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a12.01 (a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 12.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 12.01 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 12.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 12.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (NGL Energy Partners LP), Limited Liability Company Agreement (NGL Energy Partners LP), Limited Liability Company Agreement (SemGroup Corp)
Indemnification. (a) To the fullest extent permitted by law Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its such person’s status as an Indemnitee; provided, however that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.5, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any provided, further, no indemnification pursuant to this Section 17 6.5 shall be available to the Members or their Affiliates (other than the MLP and any Group Member) with respect to its or their obligations incurred pursuant to the Underwriting Agreement. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 6.5 shall be made only out of the assets of the CompanyCompany Assets, it being agreed that no a Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by lawLaw, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.5(a) in defending any claim, demand, action, suit or proceeding Claim shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding Claim upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.4.
(c) The indemnification provided by this Section 17 6.4 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law Law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Boardmembers of the Board of Directors, its Affiliates the Officers and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 176.4, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a); 6.5(a) and action taken or omitted by it the Indemnitee with respect to any an employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.4 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was is otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 6.4 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 6.4 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.
(j) If this Section 17 No member of the Board of Directors or any portion hereof Member shall be invalidated on any ground by any court of competent jurisdiction, then liable to the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect or to any proceedingMember for any loss suffered by the Company unless such loss is caused by such Director’s or Member’s gross negligence, appealwillful misconduct, inquiry intentional violation of law or investigation to the full extent permitted by any applicable portion material breach of this Section 17 Agreement. No member of the Board of Directors or Member shall be liable for errors in judgment or for any acts or omissions that do not constitute gross negligence, willful misconduct, intentional violation of law or material breach of this Agreement. Any member of the Board of Directors or Member may consult with counsel and accountants in respect of Company affairs and, provided such Director or Member acts in good faith reliance upon the advice or opinion of such counsel or accountants, such Director or Member shall not have been invalidated and to be liable for any loss suffered by the fullest extent permitted by applicable lawCompany in reliance thereon.
(k) For purposes hereofTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.4 ARE INTENDED BY THE MEMBERS TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, “Indemnitee” means (a) the Company BoardFAULT OR OTHER CONDUCT, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesSUBJECT TO LIMITS UNDER APPLICABLE LAW.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Energy Transfer Partners, L.P.), Limited Liability Company Agreement (Energy Transfer Partners, L.P.), Limited Liability Company Agreement (Energy Transfer Equity, L.P.)
Indemnification. (a) To Notwithstanding the termination of Employee's employment under Section 8 of this Agreement, it is confirmed that, with respect to all periods during which Employee shall be employed by Employer, (i) Employer shall indemnify and reimburse expenses to the fullest extent permitted by law but subject to the limitations expressly provided indemnification and reimbursement provisions of Employer's Certificate of Incorporation and By-Laws in effect as of the date of this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by provided that such coverage is not prohibited under the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect provisions of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawfulapplicable General Corporation Law; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or and (ii) have any obligation Employer shall use its best efforts to contribute or loan any monies or property maintain in effect it's Directors' and Officers' Indemnification Insurance policies (under which Employee shall be deemed an "insured" to the Company fullest extent provided in such policy) and to enable it purchase substitute policies in form and content substantially similar to effectuate those presently in force during all periods under which Employee may remain liable under any applicable statute of limitations. Upon request, Employer shall promptly provide Employee with copies of all such indemnificationpolicies and any notice of cancellation of them.
(b) To In addition to the fullest foregoing, as authorized by the Employer's Certificate of Incorporation and By-Laws in effect as of the date of this Agreement, the Employer further agrees, to the extent permitted not prohibited by lawthe applicable General Corporation Law, expenses (including to defend Employee by legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant counsel reasonably acceptable to Section 17(a) Employee in defending any claim, demand, threatened or pending action, suit or proceeding shallas to which Employee may be entitled to indemnification under this Agreement. In this regard, from time to time, be advanced payment in advance by the Company prior Employer of all expenses incurred or to the final disposition of be incurred by Employee in defending or investigating each and every such claim, demand, action, suit or proceeding upon receipt which has been instituted and is pending on the date of this Agreement or which shall subsequently be instituted is authorized by the Company Board of any undertaking by or on behalf Directors of the Indemnitee Employer, and Employee agrees to repay such amount if advanced amounts in the event it shall be is ultimately determined that the Indemnitee Employee is not entitled to be indemnified by the Employer as authorized under its Certificate of Incorporation and By-Laws, and the applicable General Corporation Law. As regards any decision to advance expenses as to any action, suit or proceeding not already referred to in this Section 17subparagraph, Employee will be given the same consideration in the reaching of any such decision as shall be given to any person who is a director or officer of Employer at the time of such decision.
(c) The indemnification provided Employer further agrees to notify Employee of all threatened or pending actions, suits, or other proceedings by this Section 17 shall be in addition to any other rights or against Employer to which an Indemnitee may be entitled under any agreementEmployee is named a party, pursuant and to any vote of the Members, as a matter of law or otherwise, both as to actions filed in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacityconnection with it, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit otherwise keep Employee reasonably informed of the heirs, successors, assigns status of such actions and administrators any offers of the Indemniteesettlement.
(d) The Company may purchase and maintain (Employee agrees to notify Employer of all threatened or reimburse Shipping Master pending actions, suits, or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons proceedings against Employee in any capacity as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the CompanyEmployer.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Employment Agreement (Prima Group International Inc), Employment Agreement (Prima Group International Inc), Employment Agreement (Prima Group International Inc)
Indemnification. (a) To The Company shall indemnify and hold harmless the fullest extent permitted by law but subject to Member, its shareholders, officers, directors, employees and agents and the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified officers and held harmless by employees of the Company (the “Indemnitees”) from and against any and all costs, losses, liabilities, damages, claims, damages, liabilities, joint or several, expenses of any nature (including legal reasonable attorneys’ fees and expensesdisbursements), judgments, fines, penalties, interest, settlements or and any other amounts arising from any and all claims, demands, actions, suits demands or proceedings, whether civil, criminal, administrative paid or investigative, accrued by an Indemnitee in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that connection with the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets business of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted provided or allowed by law, expenses (including legal fees and expenses) the laws of the State of Delaware. Expenses incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit demand or proceeding subject to this Section 11 shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit demand or proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount amounts if it shall be is ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 17.
(c) 11. The indemnification and advancement of expenses provided by this Section 17 11 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote consent of the MembersMember, as a matter of law or equity, or otherwise, both shall be considered contractual obligations of the Company which shall be deemed vested as to actions in of the date that such Indemnitee became an Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an any Indemnitee who has ceased to serve in such the capacity that made it an Indemnitee, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for . Subject to the cost of) insuranceforegoing sentence, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 11 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No persons. While any provision of this Section 11 may be amended, modified or repealed, no such amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified or advanced expenses by the Company, nor the obligations of the Company to indemnify or advance expenses to any such Indemnitee under and in accordance with the provisions of this Section 17 11 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Penn Virginia Holding Corp), Limited Liability Company Agreement (Penn Virginia Holding Corp), Limited Liability Company Agreement (Penn Virginia Holding Corp)
Indemnification. (a) A. To the fullest extent permitted by law but subject to applicable law, the limitations expressly provided in this Agreement, Company shall indemnify each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including including, without limitation, attorney's fees and other legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, that relate to the operations of the Company ("Actions") as set forth in this Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. Without limitation the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including, without limitation, any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Managing Member is hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. The termination of any proceeding by reason of its status as an Indemnitee; providedjudgment, order or settlement does not create a presumption that the Indemnitee shall did not be indemnified and held harmless if there has been meet the requisite standard of conduct set forth in this Section 7.7.A. The termination of any proceeding by conviction or upon a final and non-appealable judgment entered by plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a court of competent jurisdiction determining that, in respect of the matter for which rebuttable presumption that the Indemnitee is seeking acted in a manner contrary to that specified in this Section 7.7.A with respect to the subject matter of such proceeding. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the Company, it being agreed that no and any insurance proceeds from the liability policy covering the Managing Member and any Indemnitees, and neither the Managing Member nor any Non-Managing Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute to the capital of the Company or loan any monies or property otherwise provide funds to enable the Company to enable it to effectuate such indemnificationfund its obligations under this Section 7.7.
(b) To the fullest extent permitted by law, B. Reasonable expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant a party to Section 17(a) a proceeding or otherwise subject to or the focus of or is involved in defending any claim, demand, action, suit Action shall be paid or proceeding shall, from time to time, be advanced reimbursed by the Company prior to as incurred by the Indemnitee in advance of the final disposition of such claim, demand, action, suit or proceeding the Action upon receipt by the Company of any (i) a written affirmation by the Indemnitee of the Indemnitee's good faith belief that the standard of conduct necessary for indemnification by the Company as authorized in Section 7.7.A has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay such the amount if it shall ultimately be determined that the Indemnitee is standard of conduct has not entitled to be indemnified as authorized in this Section 17been met.
(c) C. The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to the benefit of the heirs, successors, assigns and administrators of the Indemniteewhich such Indemnitee is indemnified.
(d) D. The Company may may, but shall not be obligated to, purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of any of the Company Board, its Affiliates Indemnitees and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against or expense expenses that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company's activities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) E. In no event may an Indemnitee subject any of the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) F. An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) G. The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No . Any amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall be prospective only and shall not in any manner terminate, reduce or impair way affect the right of any past, present or future Indemnitee to be indemnified by limitations on the Company, nor the obligations of the Company 's liability to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) H. If this Section 17 or and to the extent any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then reimbursements to the Company shall nevertheless indemnify and hold harmless each Person indemnified Managing Member pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation 7.7 constitute gross income to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and Managing Member (as opposed to the fullest extent permitted repayment of advances made by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee Managing Member on behalf of the Company) such amounts shall constitute guaranteed payments within the meaning of Code Section 707(c), shall be treated consistently therewith by the Company and all Members, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason treated as distributions for purposes of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicescomputing the Members' Capital Accounts.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Health Care Property Investors Inc), Limited Liability Company Agreement (Pan Pacific Retail Properties Inc), Limited Liability Company Agreement (Health Care Property Investors Inc)
Indemnification. (a) To the fullest extent permitted by law but subject to law, the limitations expressly provided in this AgreementCompany shall indemnify, defend and hold harmless each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including including, without limitation, attorneys’ fees and other legal fees and expenses), judgments, finesfines and settlements (collectively, penalties“Losses”) sustained or incurred by such Indemnitee as a result of any act, interestdecision or omission concerning the business or activities of, settlements or other amounts that otherwise is related to, the Company (including any Losses arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, that relate to or arise in connection with the operations or business of the Company or arise out of or are based upon in whole or in part such Indemnitee’s relationship to the Company, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise), by reason of its status as an Indemnitee; providedexcept to the extent such Losses are determined, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatin a final, in respect of non-appealable decision, to result from the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith gross negligence or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the such Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, . Reasonable expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant a party to Section 17(a) in defending any claim, demand, action, suit a proceeding shall be paid or proceeding shall, from time to time, be advanced reimbursed by the Company prior to in advance of the final disposition of such claim, demand, action, suit or the proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) hereunder. The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee or any other person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person unless otherwise provided in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan a written agreement pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) such Indemnitees are indemnified. An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreementapplies.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Global Engine Manufacturing Alliance LLC), Limited Liability Company Agreement (Global Engine Manufacturing Alliance LLC), Limited Liability Company Agreement (Global Engine Manufacturing Alliance LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law:
(a) The Company (and any receiver, expenses liquidator, or trustee of, or successor to, the Company) shall indemnify and hold harmless each Exculpated Person from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, proceedings, investigations (internal or otherwise), costs, expenses, and disbursements of any kind or nature whatsoever (including legal fees all costs and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(aexpenses of defense, appeal, and settlement of any and all suits, actions, and proceedings involving such Exculpated Person and all costs of investigation (internal or otherwise) in defending connection therewith) that may be imposed on, incurred by, or asserted against such Exculpated Person in any claimway relating to or arising out of, demandin connection with, actionalleged to relate to or arise out of, suit or proceeding shallin connection with any action or inaction on the part of such Exculpated Person that relates in any way to the Company, the Operating Partnership or any Subsidiary thereof or any Strategic Investment or to the business or assets thereof; provided, however, that the indemnification obligations in this Section 10.3(a) shall not apply to (i) the portion of any liability, loss, obligation, damage, penalty, cost, expense or disbursement that results from time to timeDisabling Conduct, be advanced or (ii) disputes solely among the Exculpated Persons and which involve no third parties, unless otherwise approved by the Company prior majority of the Non-Jamestown Common Shares.
(b) Prior to the final disposition of such claim, demand, an action, suit claim or proceeding with respect to which an Exculpated Person may be entitled to indemnification pursuant to this Section 10.3, such Exculpated Person shall be reimbursed by the Company for any expenses that are incurred by such Exculpated Person in connection with such action, claim or proceeding promptly upon receipt by the Company of any a legally binding undertaking by or on behalf of from the Indemnitee Exculpated Person to repay such amount if all amounts so paid by the Company to the extent that it shall be is finally judicially determined (not subject to appeal) that the Indemnitee Exculpated Person is not entitled to be indemnified as authorized therefor under the terms hereof; provided, however, that the Company shall not advance any expenses to an Exculpated Person in this Section 17respect of any action, claim or proceeding brought against such Exculpated Person by at least a majority of the Non-Jamestown Common Shares. In the event that the Company advances funds to an Exculpated Person pursuant to the preceding sentence, such undertaking shall provide that the Company shall have a right of subrogation with respect to any right of such Exculpated Person to recover from any insurance or other source of recovery.
(c) If a claim for indemnification or payment of expenses hereunder is not paid in full within ten (10) Business Days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under this Agreement.
(d) If for any reason (other than the Disabling Conduct of such Exculpated Person) the indemnification set forth in Section 10.3(a) is unavailable to an Exculpated Person, or is insufficient to hold such Exculpated Person harmless, in respect of any losses, claims, costs, damages or liabilities referred to in Section 10.3(a), then the Company shall contribute to the amount paid or payable by such Exculpated Person as a result of such loss, claim, cost, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and such Exculpated Person, on the other hand, but also the relative fault of the Company and such Exculpated Person, as well as any relevant equitable considerations.
(e) The indemnification provided by reimbursement, indemnity and contribution obligations of the Company under this Section 17 10.3 shall be in addition to any other rights to liability which an Indemnitee the Company may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, otherwise have and shall continue as to an Indemnitee who has ceased to serve in such capacity be binding upon and shall inure to the benefit of the any successors, assigns, heirs, successors, assigns and administrators personal representatives of the IndemniteeCompany and each Exculpated Person. Any termination of this Agreement or amendment to this Section 10.3 shall not adversely affect any right or protection of an Exculpated Person existing at the time of such termination or amendment.
(df) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for General Partner shall have the cost of) insurancepower, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless to purchase and maintain insurance on behalf of the Exculpated Persons against any liability asserted against or incurred by them in any such capacity or arising out of any such Exculpated Person’s status as the Manager, the General Partner, the Company, the Operating Partnership any of their respective Affiliates, or any member of the Board, director, officer, shareholder, partner, member, employee, trustee, representative, or agent of any of them, whether or not the Company would have the power to indemnify such Exculpated Person against such liability under the provisions of this Agreement. Notwithstanding any provision hereof to the contrary, each Exculpated Person shall be a third party beneficiary of Section 10.2 and this Section 10.3.
(eg) For purposes This Section 10.3 shall not apply to the actions of this Section 17the Manager, the Company General Partner, Jamestown, or any of its Affiliates taken pursuant to Affiliate Service Contracts, which actions shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever governed by the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); Affiliate Service Contract and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreementtherein.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Jamestown Invest 1, LLC), Limited Liability Company Agreement (Jamestown Atlanta Invest 1, LLC), Limited Liability Company Agreement (Jamestown Atlanta Invest 1, LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementlaw, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith Bad Faith or engaged in fraud, willful misconduct or gross negligence fraud or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, on a monthly basis be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns permitted assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Black Stone Minerals, L.P.), Limited Partnership Agreement, Limited Partnership Agreement (Black Stone Minerals, L.P.)
Indemnification. (a) To the fullest extent permitted by law Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its such person’s status as an Indemnitee; provided, however that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.9, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; . The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17 6.9 shall be made only out of the assets of the Company, it being agreed that no a Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(bi) To the fullest extent permitted by lawLaw, expenses (including reasonable legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.9(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 176.9.
(cii) The Company shall, to the fullest extent permitted under the Act, pay or reimburse expenses incurred by an Indemnitee in connection with the Indemnitee’s appearance as a witness or other participation in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding.
(b) The indemnification provided by this Section 17 6.9 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(dc) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company members of the Board, its Affiliates the Officers and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(ed) For purposes of this Section 176.9, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a6.9(a); and action taken or omitted by it the Indemnitee with respect to any an employee benefit plan in the performance of its such Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(ge) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.9 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hf) The provisions of this Section 17 6.9 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ig) No amendment, modification or repeal of this Section 17 6.9 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company, nor Company or the obligations obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.
(jh) If this Section 17 Any act or any portion hereof shall be invalidated omission performed or omitted by an Indemnitee on any ground advice of legal counsel or an independent consultant who has been employed or retained by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costsshall, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawLaw, be presumed to have been performed or omitted in good faith without gross negligence or willful misconduct.
(ki) For purposes hereofTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.9 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesFAULT OR OTHER CONDUCT.
Appears in 3 contracts
Samples: Merger Agreement (Energy Transfer Equity, L.P.), Merger Agreement (Williams Companies Inc), Merger Agreement
Indemnification. (a) To the fullest extent permitted by law but subject Subject to the limitations expressly and conditions provided in this AgreementSection 7.4, each Indemnitee (as defined below) shall Person who was or is made a party or is threatened to be indemnified and held harmless by the Company from and against made a party to or is involved in any and all lossesthreatened, claimspending or completed action, damages, liabilities, joint suit or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, criminal, administrative or investigativearbitrative (each, a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact he, she or it, or a Person of which he, she or it is the legal representative, is or was a Member, an Officer, or acting as the, Managing Member, Tax Matters Member or Company Representative of the Company, in which each case, shall be indemnified by the Company to the fullest extent permitted by applicable Law, as the same exists or may hereafter be amended (but, in the case of any such Indemnitee may amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such Law permitted the Company to provide prior to such amendment) against all judgment, penalties (including excise and similar taxes and punitive damages), fines, settlement and reasonable expenses (including reasonable attorneys’ fees and expenses) actually incurred by such Person in connection with such Proceeding, appeal, inquiry or investigation, if such Person acted in Good Faith. Reasonable expenses incurred by a Person of the type entitled to be involvedindemnified under this Section 7.4 who was, is or is threatened to be involved, as made a party named defendant or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been respondent in a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 Proceeding shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced paid by the Company prior to in advance of the final disposition of such claim, demand, action, suit or proceeding the Proceeding upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee such Person to repay such amount if it shall ultimately be determined that the Indemnitee he, she or it is not entitled to be indemnified as authorized in by the Company. Indemnification under this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and 7.4 shall continue as to an Indemnitee a Person who has ceased to serve in such the capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by which initially entitled such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of indemnity hereunder. The rights granted pursuant to this Section 17, the Company 7.4 shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties oncontract rights, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.4 shall have the effect of limiting or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify denying any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal rights with respect to claims actions taken or Proceedings, appeals, inquiries or investigations arising from or relating to matters occurring, in whole or in part, prior to such any amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If . It is expressly acknowledged that the indemnification provided in this Section 17 7.4 could involve indemnification for negligence or any portion hereof shall be invalidated on any ground by any court under theories of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawstrict liability.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Operating Agreement (Cactus, Inc.), Limited Liability Company Agreement (Select Energy Services, Inc.), Limited Liability Company Agreement (Select Energy Services, Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 174.3, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 4.3 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a4.3(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 4.3, demand, action, suit or proceeding that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 174.3.
(c) Notwithstanding Sections 4.3(a) and 4.3(b), the Company shall be required to indemnify and advance expenses to an Indemnitee in connection with any action, suit or proceeding commenced by such Indemnitee only if the commencement of such action, suit or proceeding by such Indemnitee was authorized by the Sole Member in its sole discretion.
(d) The indemnification provided by this Section 17 4.3 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(de) The Company may purchase and maintain (or reimburse Shipping Master the Sole Member or its Affiliates for the cost of) insurance, on behalf of the Company BoardSole Member, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board Sole Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. In addition, the Company may enter into additional indemnification agreements with any Indemnitee.
(ef) For purposes of this Section 174.3, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to in such Indemnitee’s capacity as a fiduciary or administrator of an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a4.3(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(fg) In The indemnification and advancement set forth in this Section 4.3 shall be solely from the assets of the Company, and in no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(gh) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 4.3 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hi) The provisions of this Section 17 4.3 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ij) No amendment, modification or repeal of this Section 17 or any provision hereof 4.3 shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 4.3 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Rentech Nitrogen Pasadena Holdings, LLC), Limited Liability Company Agreement (Rentech Nitrogen Pasadena Holdings, LLC), Limited Liability Company Agreement (Rentech Nitrogen Partners, L.P.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementlaw, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; . For purposes of this Agreement, any determination, other action or failure to act by any Indemnitee will be considered to be in bad faith only if such Indemnitee subjectively believed such determination, other action or failure to act was adverse to the interest of the Company. Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the Company, it being agreed that no the Managing Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Non-Managing Member Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the Managing Member or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates an Indemnitee and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person Indemnitee in connection with the Company’s activities or such PersonIndemnitee’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person Indemnitee against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Non-Managing Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Operating Agreement (EnLink Midstream, LLC), Operating Agreement (EnLink Midstream, LLC), Operating Agreement (New Public Rangers, L.L.C.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and relating to the business and affairs of the Partnership; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct misconduct, or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the MembersLimited Partner, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(ge) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hf) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ig) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or or-in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(jh) If Subject to the rights of the Indemnitees in Section 17(g), which shall remain in full force and effect, the Limited Partner may, by 14 days notice to the General Partner, terminate this Section 17 or any portion hereof shall be invalidated (together with its guarantee thereof) on any ground by any court a prospective basis only, following the later of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, date the General Partner no longer has the right to cause the Partnership to appoint at least one Director and (b) any person who is the Applicable Date (as defined in the Support Agreement, dated as of June 10, 2010, by and among the Limited Partner, BGH GP Holdings, and certain other parties). Notwithstanding Section 13, prior to the effective date of such termination, the General Partner shall have the right to require the Limited Partner (or was a Manager, Officer, employee, agent or trustee wholly owned Subsidiary of the Company, and (cLimited Partner designated by the Limited Partner) any person who is or was serving at to purchase the request interests of the Company Board General Partner in the Partnership for $1,000, effective as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason the date of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicestermination of this Section 17.
Appears in 3 contracts
Samples: Agreement of Limited Partnership (Buckeye GP Holdings L.P.), Agreement of Limited Partnership (Buckeye Partners, L.P.), Merger Agreement (Buckeye GP Holdings L.P.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.1 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.1.
(c) The indemnification provided by this Section 17 7.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)7.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.1 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 7.1(A), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 7.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (OCI Resources LP), Limited Liability Company Agreement (OCI Resources LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 179.3, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to this Section 17(a) 9.3 in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.3.
(c) The Company may purchase and maintain insurance, to the extent and in such amounts as the Company determines to be reasonable, on behalf of Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against or expenses that may be incurred by any such Indemnitees or other Persons in connection with the activities of the Company or such Indemnitees. The Company may enter into indemnity contracts with Indemnitees or other Persons and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations and containing such other procedures regarding indemnification as the Board determines are necessary or appropriate.
(d) The indemnification provided by this Section 17 9.3 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Hiland Partners, LP), Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.), Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Indemnification. (a) To the fullest extent permitted by law but law, the Fund shall, subject to Section 3.7(b) hereof, indemnify each Manager, former Manager, officer and former officer of the limitations expressly provided in Fund (including for this Agreementpurpose their executors, each Indemnitee (as defined belowheirs, assigns, successors or other legal representatives) shall be indemnified and held harmless by the Company from and against any and all losses, charges, claims, expenses, assessments, damages, liabilitiescosts and liabilities (collectively, joint “Losses”), including, but not limited to, amounts paid in satisfaction of judgments, in compromise, or severalas fines or penalties, expenses (including legal and reasonable counsel fees and expenses)disbursements, judgmentsincurred in connection with the defense or disposition of any action, finessuit, penalties, interest, settlements investigation or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civilcivil or criminal, criminalbefore any judicial, arbitral, administrative or investigativelegislative body, in which such Indemnitee indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwise, or with which such indemnitee may be or may have been threatened, while in office or thereafter, by reason of its status being or having been a Manager or officer of the Fund, as an Indemnitee; providedapplicable, that or the Indemnitee past or present performance of services to the Fund by such indemnitee, except to the extent such Losses shall have been finally determined in a non-appealable decision on the merits in any such action, suit, investigation or other proceeding to have been incurred or suffered by such indemnitee by reason of willful misfeasance or gross negligence involved in the conduct of such indemnitee’s office. The rights of indemnification provided under this Section 3.7 shall not be indemnified construed so as to provide for indemnification of an indemnitee for any Losses (including any liability under federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith) to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the applicable provisions of this Section 3.7 to the fullest extent permitted by law. Any manager of the Fund appointed by the Organizational Member prior to the effectiveness of this Agreement shall be deemed to be a “Manager” for purposes of this Section 3.7.
(b) Expenses, including reasonable counsel fees and held harmless disbursements, so incurred by any such indemnitee (but excluding amounts paid in satisfaction of judgments, in compromise, or as fines or penalties), shall be paid or reimbursed by the Fund in advance of the final disposition of any such action, suit, investigation or proceeding upon receipt of an undertaking by or on behalf of such indemnitee to repay to the Fund amounts so paid if there has been it shall ultimately be determined that indemnification of such expenses is not authorized under Section 3.7(a) hereof.
(c) Any indemnification or advancement of expenses made pursuant to this Section 3.7 shall not prevent the recovery from any indemnitee of any such amount if such indemnitee subsequently shall be determined in a final and non-appealable judgment entered by a decision on the merits of any court of competent jurisdiction determining thatin any action, suit, investigation or proceeding involving the liability or expense that gave rise to such indemnification or advancement of expenses to be liable to the Fund or its Members by reason of willful misfeasance or gross negligence involved in respect the conduct of such indemnitee’s office.
(d) As to the disposition of any action, suit, investigation or proceeding (whether by a compromise payment, pursuant to a consent decree or otherwise) without an adjudication or a decision on the merits by a court, or by any other body before which the proceeding shall have been brought, that an indemnitee is liable to the Fund or its Members by reason of willful misfeasance or gross negligence involved in the conduct of such indemnitee’s office, indemnification shall be provided pursuant to Section 3.7(a) hereof if (i) approved by a majority of the matter for which the Indemnitee Managers (excluding any Manager who is seeking indemnification hereunder) upon a determination based upon a review of readily available facts (as opposed to a full trial-type inquiry) that such indemnitee acted in good faith and in the reasonable belief that the actions or omissions in question were in the best interests of the Fund and that such indemnitee is not liable to the Fund or its Members by reason of willful misfeasance or gross negligence involved in the conduct of such indemnitee’s office, or (ii) the Board of Managers secures a written opinion of independent legal counsel based upon a review of readily available facts (as opposed to a full trial-type inquiry) to the effect that such indemnitee acted in good faith and in the reasonable belief that the actions or omissions in question were in the best interests of the Fund and that such indemnitee is not liable to the Fund or its Members by reason of willful misfeasance or gross negligence involved in the conduct of such indemnitee’s office.
(e) In any suit brought by an indemnitee to enforce a right to indemnification under this Section 3.7 it shall be a defense that, and in any suit in the name of the Fund to recover any indemnification or advancement of expenses made pursuant to this Section 173.7 the Fund shall be entitled to recover such expenses upon a final adjudication that, the Indemnitee acted indemnitee has not met the applicable standard of conduct set forth in bad faith this Section 3.7. In any such suit brought to enforce a right to indemnification or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; to recover any indemnification or advancement of expenses made pursuant to this Section 17 3.7, the burden of proving that the indemnitee is not entitled to be indemnified, or to any indemnification or advancement of expenses, under this Section 3.7 shall be made only on the Fund (or any Member acting derivatively or otherwise on behalf of the Fund or its Members).
(f) An indemnitee may not satisfy any right of indemnification or advancement of expenses granted in this Section 3.7 or to which he, she or it may otherwise be entitled except out of the assets of the CompanyFund, it being agreed that and no Member shall (i) be personally liable with respect to any such claim for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationadvancement of expenses.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(cg) The rights of indemnification provided by this Section 17 hereunder shall not be in addition to exclusive of or affect any other rights to which an Indemnitee any person may be entitled by contract or otherwise under any agreement, pursuant to any vote law. Nothing contained in this Section 3.7 shall affect the power of the Members, as a matter of law or otherwise, both as Fund to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, liability insurance on behalf of the Company Boardany Manager, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf officer of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, Fund or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreementother person.
(h) The provisions of this Section 17 are for To the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company BoardAdviser, (b) the Placement Agent and the Administrator, and any person who is or was a Managerother party serving as the investment adviser, Officer, employee, the placement agent or trustee administrator of the CompanyFund or providing other services to the Fund shall be entitled to indemnification from the Fund upon such terms and subject to such conditions and exceptions, and (c) any person who is or was serving at with such entitlement to have recourse to the request assets of the Company Board Fund with a view to meeting and discharging the cost thereof as a membermay be provided under the Investment Management Agreement, partnerthe Placement Agent Agreement, director, officer, employee, partner, agent, fiduciary the Administration Agreement or trustee of another person, in each case, acting in any agreement between any such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesparty and the Fund.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Partners Group Growth, LLC), Limited Liability Company Agreement (Partners Group Next Generation Infrastructure LLC), Limited Liability Company Agreement (Partners Group Private Equity (Master Fund), LLC)
Indemnification. (a) To the fullest extent permitted by law law, but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as the Indemnitee’s serving or having served, or taking or having taken any action or inaction in, any capacity that causes or caused the Indemnitee to be an Indemnitee; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 179.01, the Indemnitee acted in bad faith or faith, engaged in fraud, fraud or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.01 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding proceeding, upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.01.
(c) The indemnification provided by this Section 17 9.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company Company, its Affiliates, the Board, its Affiliates the Officers and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.01, (i) the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it the Indemnitee of its duties to the Company also imposes duties on, or otherwise involves services by, it the Indemnitee to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a9.01(a); and (iii) action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its the Indemnitee’s duties for a purpose reasonably believed by it such Indemnitee to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 9.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 9.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Cheniere Energy Partners, L.P.), Limited Liability Company Agreement (Cheniere Energy Partners, L.P.), Limited Liability Company Agreement (Cheniere Energy Partners, L.P.)
Indemnification. (a) To the fullest extent permitted by law but law, the Fund shall, subject to the limitations expressly provided in this AgreementSection 3.7(b) hereof, indemnify each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or severalcosts, expenses (including legal fees and expenses), including, but not limited to, amounts paid in satisfaction of judgments, finesin compromise, or as fines or penalties, interestand reasonable counsel fees, settlements incurred in connection with the defense or disposition of any action, suit, investigation, or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, civil or criminal, administrative before any judicial, arbitral, administrative, or investigativelegislative body, in which such Indemnitee may be involved, or is threatened to be involved, may have been involved as a party or otherwise, or with which such Indemnitee may be or may have been threatened, while in office or thereafter, by reason of its status being or having been a Manager of the Fund or the past or present performance of services to the Fund by such Indemnitee, except to the extent such loss, claim, damage, liability, cost, or expense shall have been finally determined in a decision on the merits in any such action, suit, investigation, or other proceeding to have been incurred or suffered by such Indemnitee by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of such Indemnitee’s offices. The rights of indemnification provided under this Section 3.7 shall not be construed so as to provide for indemnification of a Manager for any liability (including liability under federal securities laws that, under certain circumstances, impose liability even on Persons that act in good faith) to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the applicable provisions of this Section 3.7 to the fullest extent permitted by law.
(b) Expenses so incurred by such Indemnitees, including, but not limited to, reasonable counsel fees and accounting and auditing expenses (but excluding amounts paid in satisfaction of judgments, in compromise, or as fines or penalties), shall be paid from time to time by the Fund in advance of the final disposition of any such action, suit, investigation, or proceeding upon receipt of an Indemniteeundertaking by or on behalf of such Indemnitees to repay to the Fund amounts so paid if it shall ultimately be determined that indemnification of such expenses is not authorized under Section 3.7(a) hereof; provided, however, that (i) such Indemnitees shall provide security for such undertaking, (ii) the Indemnitee Fund shall not be indemnified and held harmless if there insured by or on behalf of such Indemnitees against losses arising by reason of such Indemnitees’ failure to fulfill such undertaking, or (iii) a majority of the Managers (excluding any Manager who is either seeking advancement of expenses hereunder or is or has been a final and nonparty to any other action, suit, investigation, or proceeding involving claims similar to those involved in the action, suit, investigation, or proceeding giving rise to a claim for advancement of expenses hereunder) or independent legal counsel in a written opinion shall determine based on a review of readily available facts (as opposed to a full trial-appealable judgment entered type inquiry) that there is reason to believe such Indemnitees ultimately will be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation, or proceeding (whether by a court compromise payment, pursuant to a consent decree or otherwise) without an adjudication or a decision on the merits by a court, or by any other body before which the proceeding shall have been brought, that an Indemnitee is liable to the Fund or its Members by reason of competent jurisdiction determining thatwillful misfeasance, in respect bad faith, gross negligence, or reckless disregard of the matter duties involved in the conduct of such Indemnitee’s offices, indemnification shall be provided pursuant to Section 3.7(a) hereof if (i) approved as in the best interests of the Fund by a majority of the Managers (excluding any Manager who is either seeking indemnification hereunder or is or has been a party to any other action, suit, investigation, or proceeding involving claims similar to those involved in the action, suit, investigation, or proceeding giving rise to a claim for which indemnification hereunder) upon a determination based upon a review of readily available facts (as opposed to a full trial-type inquiry) that such Indemnitee acted in good faith and in the reasonable belief that such actions were in the best interests of the Fund and that such Indemnitee is seeking not liable to the Fund or its Members by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of such Indemnitee’s offices, or (ii) the Board secures a written opinion of independent legal counsel based upon a review of readily available facts (as opposed to a full trial-type inquiry) to the effect that such indemnification would not protect such Indemnitee against any liability to the Fund or its Members to which such Indemnitee would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of such Indemnitee’s offices.
(d) Any indemnification or advancement of expenses made pursuant to this Section 173.7 shall not prevent the recovery from any Indemnitee of any such amount if such Indemnitee subsequently shall be determined in a decision on the merits in any action, suit, investigation or proceeding involving the Indemnitee acted in liability or expense that gave rise to such indemnification or advancement of expenses to be liable to the Fund or its Members by reason of willful misfeasance, bad faith faith, gross negligence, or engaged in fraud, willful misconduct or gross negligence or, reckless disregard of the duties involved in the case conduct of a criminal matter, acted with knowledge that the such Indemnitee’s conduct was unlawful; offices. In (i) any suit brought by a Manager (or other Person entitled to indemnification hereunder) to enforce a right to indemnification under this Section 3.7, it shall be a defense that, and (ii) in any suit in the name of the Fund to recover any indemnification or advancement of expenses made pursuant to this Section 17 3.7, the Fund shall be entitled to recover such expenses upon a final adjudication that, the Manager or other Person claiming a right to indemnification under this Section 3.7 has not met the applicable standard of conduct set forth in this Section 3.7. In any such suit brought to enforce a right to indemnification or to recover any indemnification or advancement of expenses made only pursuant to this Section 3.7, the burden of proving that the Manager or other Person claiming a right to indemnification is not entitled to be indemnified, or to any indemnification or advancement of expenses, under this Section 3.7 shall be on the Fund (or any Member acting derivatively or otherwise on behalf of the Fund or its Members).
(e) The Indemnitees may not satisfy any right of indemnification or advancement of expenses granted in this Section 3.7 or to which such Indemnitees may otherwise be entitled except out of the assets of the CompanyFund, it being agreed that and no Member shall (i) be personally liable with respect to any such claim for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationadvancement of expenses.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(cf) The rights of indemnification provided by this Section 17 hereunder shall not be in addition to exclusive of or affect any other rights to which an Indemnitee any Person may be entitled by contract or otherwise under any agreement, pursuant to any vote law. Nothing contained in this Section 3.7 shall affect the power of the Members, as a matter of law or otherwise, both as Fund to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, liability insurance on behalf of the Company Board, its Affiliates and such any Manager or other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Wells Fargo Multi-Strategy 100 Tei Fund A, LLC), Limited Liability Company Agreement (Wells Fargo Multi-Strategy 100 Tei Fund A, LLC), Limited Liability Company Agreement (Wells Fargo Family Office Master Fund, LLC)
Indemnification. (a) To the fullest extent permitted by law but subject law, the Borrower shall indemnify the TIFIA Lender and any official, employee, agent or representative of the TIFIA Lender (each such Person being herein referred to the limitations expressly provided in this Agreementas an “Indemnitee”) against, and hold each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against from, any and all losses, claims, damages, liabilities, joint or severalfines, penalties, costs and expenses (including legal fees the fees, charges and expensesdisbursements of any counsel for any Indemnitee and the costs of environmental remediation), judgmentswhether known, unknown, contingent or otherwise, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of
(a) the execution, delivery and performance of this Agreement or any of the other Related Documents, (b) the TIFIA Loan or the use of the proceeds thereof, or (c) the violation of any law, rule, regulation, order, decree, judgment or administrative decision relating to the environment, the preservation or reclamation of natural resources, the management, release or threatened release of any hazardous material or to health and safety matters; in each case arising out of or in direct relation to the Project; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities, fines, penalties, interest, settlements costs or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered related expenses are determined by a court of competent jurisdiction determining that, in by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. In case any action or proceeding is brought against an Indemnitee by reason of any claim with respect of the matter for to which the such Indemnitee is seeking entitled to indemnification pursuant to this Section 17hereunder, the Indemnitee acted in bad faith or engaged in fraudBorrower shall be entitled, willful misconduct or gross negligence orat its expense, to participate in the case of a criminal matterdefense thereof; provided that such Indemnitee has the right to retain its own counsel, acted with knowledge that at the IndemniteeBorrower’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Companyexpense, it being agreed that no Member shall (i) be personally liable for and such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced participation by the Company prior to Borrower in the final disposition of such claim, demand, action, suit or proceeding upon receipt by defense thereof shall not release the Company Borrower of any undertaking by or on behalf of the liability that it may have to such Indemnitee. Any Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized against whom any indemnity claim contemplated in this Section 17.
(c) The indemnification provided by this Section 17 14 is made shall be in addition entitled, with the Borrower’s prior written consent (which shall not be unreasonably withheld or delayed), to compromise or settle any other rights to which an Indemnitee may be entitled under any agreementsuch indemnity claim, pursuant to any vote of and the MembersBorrower further agrees that it shall not, as a matter of law or otherwise, both as to actions in the without such Indemnitee’s capacity as an Indemnitee and as to actions in prior written consent, compromise or settle any other capacity, and such indemnity claim. Any such compromise or settlement shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to be binding upon the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates Borrower for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company 14. Nothing herein shall be deemed to have requested an Indemnitee to serve construed as fiduciary a waiver of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect any legal immunity that may be available to any employee benefit plan in Indemnitee. To the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (kas opposed to direct or actual damages) For purposes hereofarising out of, “Indemnitee” means (a) the Company Boardin connection with, (b) or as a result of, this Agreement, any person who is or was a Manager, Officer, employee, agent or trustee of the Companyother Related Documents, the TIFIA Loan and the other transactions contemplated hereby and thereby, or the use of the proceeds thereof. All amounts due to any Indemnitee under this Section 14 shall be payable promptly upon demand therefor. The obligations of the Borrower under this Section 14 shall survive the payment or prepayment in full or transfer of the TIFIA Bond, the enforcement of any provision of this Agreement or the other Related Documents, any amendments, waivers (other than amendments or waivers in writing with respect to this Section 14) or consents in respect hereof or thereof, any Event of Default, and (c) any person who is workout, restructuring or was serving at the request similar arrangement of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary obligations of the Borrower hereunder or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesthereunder.
Appears in 3 contracts
Samples: Tifia Loan Agreement, Tifia Loan Agreement, Loan Agreement
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacitycapacity (including any capacity under the Underwriting Agreement), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Agreement of Limited Partnership (Rhino Resource Partners LP), Limited Partnership Agreement (Rhino Resource Partners LP), Limited Partnership Agreement (Rhino Resource Partners LP)
Indemnification. (a) To the fullest extent permitted by law Applicable Law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the an Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 1712.01, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; . The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17 12.01 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a12.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding proceeding, upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 1712.01.
(c) The indemnification provided by this Section 17 12.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the an Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the an Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company BoardCompany, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power or obligation to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 1712.01, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a12.01(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 12.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 12.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators administrators, and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 12.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 12.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Oxford Resource Partners LP), Limited Liability Company Agreement (Oxford Resource Partners LP), Limited Liability Company Agreement (Oxford Resource Partners LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 175.9, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 5.9 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a5.9(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 5.9, demand, action, suit or proceeding that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 175.9.
(c) Notwithstanding Sections 5.9(a) and 5.9(b), the Company shall be required to indemnify and advance expenses to an Indemnitee in connection with any action, suit or proceeding commenced by such Indemnitee only if the commencement of such action, suit or proceeding by such Indemnitee was authorized by the Sole Member in its sole discretion.
(d) The indemnification provided by this Section 17 5.9 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(de) The Company may purchase and maintain (or reimburse Shipping Master the Sole Member or its Affiliates for the cost of) insurance, on behalf of the Company BoardDirectors, the Officers, the Sole Member, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board Sole Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. In addition, the Company may enter into additional indemnification agreements with any Indemnitee.
(ef) For purposes of this Section 175.9, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to in such Indemnitee’s capacity as a fiduciary or administrator of an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a5.9(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(fg) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(gh) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 5.9 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hi) The provisions of this Section 17 5.9 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ij) No amendment, modification or repeal of this Section 17 or any provision hereof 5.9 shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 5.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Rentech Nitrogen Partners, L.P.), Limited Liability Company Agreement (Rentech Nitrogen Partners, L.P.), Limited Liability Company Agreement (Rentech Nitrogen Partners, L.P.)
Indemnification. (a) To Notwithstanding any provision of this Agreement to the contrary, to the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless not prohibited by the Company Act, the Partnership shall indemnify and hold harmless the General Partner Parties from and against any and all losses, damages, obligations, penalties, claims, damagesactions, suits, judgments, settlements, liabilities, joint or severalcosts, and expenses (including legal fees including, without limitation, reasonable attorneys’ and expenses)accountants’ fees, judgmentsas well as other costs and expenses incurred in connection with the defense of any actual or threatened action or proceeding or any investigation, fines, penalties, interest, settlements inquiries by governmental agencies or other amounts arising request for information from any regulator) and all claims, demands, actions, suits amounts paid in settlement of any claims (collectively “Damages”) suffered or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, sustained by any of the foregoing persons as a party result of or otherwise, in connection with any act performed by reason them under this Agreement or otherwise on behalf of its status as an Indemniteethe Partnership; provided, however, that the Indemnitee such indemnity shall be payable only if such damages were not be indemnified and held harmless if there has been a final and non-appealable judgment entered found by a court of competent jurisdiction determining that, in respect upon entry of a final judgment to have been the result of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in General Partner’s fraud, gross negligence, or willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification performance or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the non-performance by it of its duties to the Company also imposes duties onPartnership, and in the case of criminal proceedings, that the indemnified party or parties had no reasonable cause to believe was unlawful. The General Partner may, in its sole discretion, cause the Partnership to advance to any person or entity entitled to indemnification hereunder reasonable attorney’s fees and other costs and expenses incurred in connection with the defense of any action or proceeding or any investigation that arises out of such conduct, provided that all such advances will be promptly repaid if it is subsequently determined that the person or entity receiving such advance was no entitled to indemnification hereunder. No indemnification may be made and each indemnified party or parties shall reimburse the Partnership to the extent of any indemnification previously made in respect of any claim, issue or matter as to which the indemnified party or parties shall have been adjudged by a court of competent jurisdiction pursuant to a final, non-appealable judgment, to be liable for gross negligence, fraud, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan willful misconduct in the performance of its duties for a purpose reasonably believed by it to the Partnership or would not otherwise be entitled to be held harmless under Section 2.05 unless, and only to the extent that, the court in which such action or suit was brought determines that in view of all the best interest circumstances of the participants case, despite the adjudication of liability the indemnified party(ies) is fairly and beneficiaries of reasonably entitled to indemnity for those expenses that the plan court deems proper. Any indemnity under this Section 2.06(a) shall be deemed paid from, and only to be for a purpose which is in, or not opposed tothe extent of, the best interests of the CompanyPartnership’s assets, and no Limited Partner shall have any personal liability on account thereof.
(fb) In no event may an Indemnitee subject the Members All rights to personal liability by reason of the indemnification provisions set forth permitted in this Agreement.
(g) An Indemnitee Agreement and payment of associated expenses shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted affected by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit termination and dissolution of the IndemniteesPartnership or the removal, their heirsresignation, successorswithdrawal, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendmentinsolvency, modification bankruptcy, termination or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations dissolution of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedGeneral Partner.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Clearday, Inc.), Merger Agreement (Superconductor Technologies Inc), Merger Agreement (Superconductor Technologies Inc)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that in each case the Indemnitee acted in good faith and in a manner that such Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Partnership and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not be indemnified and held harmless if there has been create a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which presumption that the Indemnitee is seeking acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the MembersPartners, as a matter of law or otherwise, both as to actions in the Indemnitee’s 's capacity as an Indemnitee and as to actions in any other capacitycapacity (including any capacity under the Underwriting Agreement dated November 26, 1996 among the Partnership, Genesis MLP, and the underwriters and other parties named therein), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s Partnership's activities or such Person’s 's activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “"fines” " within the meaning of Section 17(a7.7(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Genesis Energy Lp), Limited Partnership Agreement (Genesis Energy Lp), Limited Partnership Agreement (Genesis Energy Lp)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee the General Partner, the Limited Partner and any Person who is or was an officer or director of the General Partner (as defined beloweach, an “Indemnitee”) shall each be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, liabilities (joint or several), expenses (including including, without limitation, legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 1710.1, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 10.1 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including including, without limitation, legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company Partnership of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 1710.1.
(c) The indemnification provided by this Section 17 10.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteecapacity.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates General Partner and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the CompanyPartnership’s activities activities, whether or such Person’s activities on behalf of not the Company, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability liabilities under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject shall the Members Limited Partner be subjected to personal liability by reason of the indemnification provisions set forth in this Agreement, whether by action of an Indemnitee or otherwise.
(gf) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 10.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 10.1 are for the benefit of the Indemnitees, their heirs, successors, successors and assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 10.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations obligation of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 10.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(ji) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 10.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Agreement of Limited Partnership (Teppco Partners Lp), Agreement of Limited Partnership (Teppco Partners Lp), Agreement of Limited Partnership (Teppco Partners Lp)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementlaw, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements settlements, or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits suits, or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; . For purposes of this Agreement, any determination, other action or failure to act by any Indemnitee will be considered to be in bad faith only if such Indemnitee subjectively believed such determination, other action or failure to act was adverse to the interest of the Company. Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the Company, it being agreed that no the Managing Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Non-Managing Member Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns assigns, and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the Managing Member or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates an Indemnitee and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person Indemnitee in connection with the Company’s activities or such PersonIndemnitee’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person Indemnitee against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Non-Managing Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors, and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification modification, or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce reduce, or impair the right of any past, present present, or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification modification, or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Operating Agreement (EnLink Midstream, LLC), Preferred Restructuring Agreement (EnLink Midstream Partners, LP), Preferred Restructuring Agreement (EnLink Midstream, LLC)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Partnership; provided, provided that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.8 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.8(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.8, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.8.
(c) The indemnification provided by this Section 17 7.8 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company BoardGeneral Partner, its Affiliates Affiliates, the Indemnitees and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the CompanyPartnership’s activities or such Person’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.8, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.8(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.8 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreementapplies.
(h) The provisions of this Section 17 7.8 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.8 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Partnership Agreement (Atlas Growth Partners, L.P.), Limited Partnership Agreement (Atlas Resource Partners, L.P.), Limited Partnership Agreement (Atlas Energy, L.P.)
Indemnification. (a) A. To the fullest extent permitted by law but subject to applicable law, the limitations expressly provided in this Agreement, Company shall indemnify each Indemnitee (as defined below) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including including, without limitation, attorney’s fees and other legal fees and expenses), judgments, fines, penalties, interest, settlements or and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, that relate to the operations of the Company (“Actions”) as set forth in this Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. Without limitation the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including, without limitation, any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Managing Member is hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. The termination of any Action by reason of its status as an Indemnitee; providedjudgment, order or settlement does not create a presumption that the Indemnitee shall did not be indemnified and held harmless if there has been meet the requisite standard of conduct set forth in this Section 7.7.A. The termination of any Action by conviction or upon a final and non-appealable plea of nolo contendre or its equivalent, or an entry of an order of probation prior to judgment entered by against an Indemnitee, creates a court of competent jurisdiction determining that, in respect of the matter for which rebuttable presumption that the Indemnitee is seeking acted in a manner contrary to that specified in this Section 7.7.A with respect to the subject matter of such Action. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the Company, it being agreed that no and any insurance proceeds from the liability policy covering the Managing Member and any Indemnitees, and neither the Managing Member nor any Non-Managing Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute to the capital of the Company or loan any monies or property otherwise provide funds to enable the Company to enable it to effectuate such indemnificationfund its obligations under this Section 7.7.
(b) To the fullest extent permitted by law, B. Reasonable expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant a party to Section 17(a) a proceeding or otherwise subject to or the focus of or is involved in defending any claim, demand, action, suit Action shall be paid or proceeding shall, from time to time, be advanced reimbursed by the Company prior to as incurred by the Indemnitee in advance of the final disposition of such claim, demand, action, suit or proceeding the Action upon receipt by the Company of any (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized in Section 7.7.A has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay such the amount if it shall ultimately be determined that the Indemnitee is standard of conduct has not entitled to be indemnified as authorized in this Section 17been met.
(c) C. The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to the benefit of the heirs, successors, assigns and administrators of the Indemniteewhich such Indemnitee is indemnified.
(d) D. The Company may may, but shall not be obligated to, purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of any of the Company Board, its Affiliates Indemnitees and such other Persons as the Company Board Managing Member shall determine, against any liability that may be asserted against or expense expenses that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Companyactivities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) E. In no event may an Indemnitee subject any of the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) F. An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) G. The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No . Any amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall be prospective only and shall not in any manner terminate, reduce or impair way affect the right of any past, present or future Indemnitee to be indemnified by limitations on the Company, nor the obligations of the Company ’s liability to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) H. If this Section 17 or and to the extent any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then reimbursements to the Company shall nevertheless indemnify and hold harmless each Person indemnified Managing Member pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation 7.7 constitute gross income to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and Managing Member (as opposed to the fullest extent permitted repayment of advances made by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee Managing Member on behalf of the Company) such amounts shall constitute guaranteed payments within the meaning of Code Section 707(c), shall be treated consistently therewith by the Company and all Members, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason treated as distributions for purposes of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicescomputing the Members’ Capital Accounts.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.), Limited Liability Company Agreement (Hcp, Inc.), Limited Liability Company Agreement (Hcp, Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject Subject to the limitations expressly and conditions provided in this AgreementSection 6.4, each Indemnitee (as defined below) shall Person who was or is made a party or is threatened to be indemnified and held harmless by the Company from and against made a party to or is involved in any and all lossesthreatened, claimspending or completed action, damages, liabilities, joint suit or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, criminal, administrative or investigativearbitrative (each, a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact he, she or it, or a Person of which he, she or it is the legal representative, is or was a Member (or an Affiliate thereof), the Manager or an Officer (each, a “Company Indemnitee”), in which each case, shall be indemnified by the Company to the fullest extent permitted by applicable Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such Law permitted the Company to provide prior to such amendment) against all judgment, penalties (including excise and similar taxes and punitive damages), fines, settlement and expenses (including attorneys’ fees and expenses) actually incurred by such Company Indemnitee may in connection with such Proceeding, appeal, inquiry or investigation, if such Company Indemnitee acted in good faith and in a manner such person reasonably believed to be involvedin or not opposed to the best interests of the Company, and, with respect to a criminal proceeding, having had no reasonable cause to believe such Company Indemnitee’s conduct was unlawful. Expenses incurred by a Company Indemnitee who was, is or is threatened to be involved, as made a party named defendant or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been respondent in a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 Proceeding shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced paid by the Company prior to in advance of the final disposition of such claim, demand, action, suit or proceeding the Proceeding upon receipt by the Company of any an undertaking by or on behalf of the such Company Indemnitee to repay such amount if it shall ultimately be determined that the Indemnitee he, she or it is not entitled to be indemnified as authorized in by the Company. Indemnification under this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and 6.4 shall continue as to an Indemnitee a Person who has ceased to serve in the capacity which initially entitled such capacity Person to indemnity hereunder. The rights granted pursuant to this Section 6.4 shall be deemed contract rights, and no amendment, modification or repeal of this Section 6.4 shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings, appeals, inquiries or investigations arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Section 6.4 could involve indemnification for negligence or under theories of strict liability. The right to indemnification and the advancement of expenses conferred in this Section 6.4 shall not be exclusive of any other rights which any Person may have or hereafter acquire under any statute, agreement, bylaw, action by the Manager or otherwise and such rights shall continue as to a Company Indemnitee who has ceased to be a director, manager, officer, employee or agent and shall inure to the benefit of the Company Indemnitee’s heirs, successorsestate, assigns executors, administrators and administrators of the Indemniteelegal representatives.
(db) The Company may purchase shall indemnify PubCo for any MDC Pre-Closing Tax and maintain New MDC Pre-Closing Tax (each, as defined in the Transaction Agreement), and shall make such payments to any applicable tax authority or reimburse Shipping Master or its Affiliates for the cost ofPubCo, as contemplated by Section 8.03(c) insurance, on behalf of the Company BoardTransaction Agreement; provided, its Affiliates and such other Persons as the Company Board shall determinefor clarity, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company no amount shall be deemed payable to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part PubCo under this Section 17 because 6.4(b) to the Indemnitee had an interest in extent the transaction with respect to which MDC Pre-Closing Tax or New MDC Pre-Closing Tax, as the indemnification applies if the transaction was otherwise permitted case may be, has been paid by the terms of this Agreement.
Company directly to the applicable tax authority or the adjustments giving rise to such MDC Pre-Closing Tax or New MDC Pre-Closing Tax, as the case may be, have been taken into account in clause (hy) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation proviso to the full extent permitted by any applicable portion definition of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawAssumed Tax Liability.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Stagwell Inc), Limited Liability Company Agreement (Stagwell Inc), Transaction Agreement (MDC Partners Inc)
Indemnification. (a) To the fullest full extent permitted by law but subject to the limitations expressly provided in this Agreementapplicable law, each Indemnitee (as defined below) Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by the Company from and against any and all lossesway of limitation, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, if Executive is a party or is threatened to be involved, as made a party to any suit because he is a director, trustee, officer or otherwiseemployee of the Trust, by reason of its status as an Indemnitee; provided, that the Indemnitee he shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining thatagainst expenses, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ ' fees), judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, appealhe had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, inquiry suit or investigation proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the full extent permitted by any applicable portion financial ability of such Executive to make such repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Section 17 that shall not have been invalidated Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to the fullest extent permitted by applicable law.
(k) For purposes hereofcustomary exclusions, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee with respect to claims made against officers and directors of the CompanyTrust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and (c) any person who is or was serving at officers' liability insurance if, in the request good faith judgment of the Company Board as a memberTrust, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall it cannot be an Indemnitee by reason of providing, on obtained at a fee-for-services basis, trustee, fiduciary or custodial servicesreasonable cost.
Appears in 3 contracts
Samples: Employment Agreement (Ramco Gershenson Properties Trust), Employment Agreement (Ramco Gershenson Properties Trust), Employment Agreement (Ramco Gershenson Properties Trust)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 176.06, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 6.06 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a6.06(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.1.
(c) The indemnification provided by this Section 17 6.06 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacitycapacity (including any capacity under the Underwriting Agreement (as such term is defined in the Partnership Agreement)), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 176.06, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)6.06; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 6.06 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 6.06 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 6.06 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 6.06 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.06 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Spectra Energy Partners, LP), Limited Liability Company Agreement (Spectra Energy Partners, LP), Limited Liability Company Agreement (Spectra Energy Partners, LP)
Indemnification. (a) To the fullest extent permitted by applicable law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided, however, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.1 shall be made only out of the assets of the Company, it being agreed that no the Sole Member shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by applicable law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.1(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.1, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.1.
(c) The indemnification provided by this Section 17 7.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a)7.1; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.1 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No Any amendment, modification or repeal of this Section 17 7.1 or any provision hereof shall be prospective only and shall not in any manner way terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ feesAND SUBJECT TO SECTION 7.1(a), judgmentsTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 7.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Tallgrass Energy, LP), Limited Liability Company Agreement (Tallgrass Energy GP, LP), Limited Liability Company Agreement (Tallgrass Energy GP, LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementlaw, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.6 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.6(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.6, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.6.
(c) The indemnification provided by this Section 17 7.6 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates an Indemnitee and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person Indemnitee in connection with the CompanyPartnership’s activities or such PersonIndemnitee’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person Indemnitee against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.6, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.6(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.6 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.6 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.6 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (USD Partners LP), Contribution, Conveyance and Assumption Agreement (USD Partners LP), Limited Partnership Agreement (USD Partners LP)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreementlaw, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an IndemniteeIndemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 7.7 shall be made only out of the assets of the CompanyPartnership, it being agreed that no Member the General Partner shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan any monies or property to the Company Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the final disposition of such claimmatter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, demand, action, suit or proceeding the Indemnitee is not entitled to be indemnified upon receipt by the Company Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized in by this Section 177.7.
(c) The indemnification provided by this Section 17 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Membersholders of Outstanding Limited Partner Interests, or as a matter of law law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company Partnership may purchase and maintain (or reimburse Shipping Master the General Partner or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates an Indemnitee and such other Persons as the Company Board General Partner shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person Indemnitee in connection with the CompanyPartnership’s activities or such PersonIndemnitee’s activities on behalf of the CompanyPartnership, regardless of whether the Company Partnership would have the power to indemnify such Person Indemnitee against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.7, the Company Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a7.7(a); and action taken or omitted by it an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the CompanyPartnership.
(f) In no event may an Indemnitee subject the Members Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 7.7 are for the benefit of the Indemnitees, Indemnitees and their heirs, successors, assigns assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the CompanyPartnership, nor the obligations of the Company Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Sanchez Midstream Partners LP), Limited Partnership Agreement (Sanchez Production Partners LP), Limited Partnership Agreement (Sanchez Production Partners LP)
Indemnification. (a) To the fullest extent permitted by law but subject The Company shall indemnify Indemnitee if Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation that Indemnitee in good faith reasonably believes might lead to the limitations expressly provided institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereafter, a “Claim”) (including but not limited to a proceeding by or in this Agreement, each Indemnitee (as defined below) shall be indemnified and held harmless by the right of the Company from and to procure a judgment in its favor) by reason of the fact that Indemnitee is or was an agent of the Company or of any other entity or enterprise for which Indemnitee served at the request of the Company, against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interestamounts paid in settlement (if such settlement is approved in advance by the Company, settlements such approval not to be unreasonably withheld) of any Claim and any federal, state, or other amounts arising from local taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (collectively, hereinafter “Losses”), which Losses shall also include all attorneys’ fees and all claimsother costs, demandsexpenses and obligations incurred in connection with investigating, actionsdefending, suits being a witness in or proceedings, whether civil, criminal, administrative or investigative, participating in which such Indemnitee may be involved(including on appeal), or is threatened preparing to defend, be involveda witness or participant in, as a party any such action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or otherwiseinvestigation (collectively, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless hereinafter “Expenses”) if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad good faith or engaged and in frauda manner Indemnitee reasonably believed to be in the best interests of the Company and its subsidiaries, willful misconduct or gross negligence orand, in the case of a criminal matterproceeding, acted with knowledge had no reasonable cause to believe that Indemnitee’s conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in the best interests of the Company and its subsidiaries or that the Indemnitee had reasonable cause to believe that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Employment Agreement (Newpark Resources Inc), Employment Agreement (Newpark Resources Inc), Indemnification Agreement (Newpark Resources Inc)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that in each case the Indemnitee acted in good faith and in a manner that such Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not be indemnified and held harmless if there has been create a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which presumption that the Indemnitee is seeking acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 7.01 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a7.01 (a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 177.01.
(c) The indemnification provided by this Section 17 7.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s 's capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Company BoardCompany, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against against, or expense that may be incurred by by, such Person in connection with the Company’s 's activities or such Person’s 's activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 177.01, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “"fines” " within the meaning of Section 17(a7.01(a); and action taken or omitted by it the Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 7.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 7.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 7.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 7.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (EnLink Midstream Partners, LP), Limited Liability Company Agreement (Crosstex Energy Lp), Limited Liability Company Agreement (Crosstex Energy Lp)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Each Indemnitee (as defined belowin Section 13.8(e)) shall be indemnified and held harmless by the Company from Employer for all actions taken by him and for all failures to take action (regardless of the date of any such action or failure to take action), to the fullest extent permitted by the law of the jurisdiction in which the Employer is incorporated, against any all expense, liability, and all lossesloss (including, claimswithout limitation, damages, liabilities, joint or several, expenses (including legal fees and expenses)attorneys’ fees, judgments, fines, taxes, penalties, interest, settlements and amounts paid or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involved, or is threatened to be involved, as a party paid in settlement) reasonably incurred or otherwise, suffered by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking connection with any Proceeding (as defined in Subsection (e)). No indemnification pursuant to this Section 17shall be made, however, in any case where (1) the Indemnitee acted in bad faith act or engaged in fraud, failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification recklessness or (ii2) have any obligation there is a settlement to contribute or loan any monies or property to which the Company to enable it to effectuate such indemnificationEmployer does not consent.
(b) To The right to indemnification provided in this Section shall include the right to have the expenses incurred by the Indemnitee in defending any Proceeding paid by the Employer in advance of the final disposition of the Proceeding, to the fullest extent permitted by lawthe law of the jurisdiction in which the Employer is incorporated; provided that, if such law requires, the payment of such expenses (including legal fees and expenses) incurred by an the Indemnitee who is indemnified pursuant to Section 17(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to advance of the final disposition of such claima Proceeding shall be made only on delivery to the Employer of an undertaking, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee Indemnitee, to repay such amount all amounts so advanced without interest if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified as authorized in under this Section 17or otherwise.
(c) The indemnification provided by Indemnification pursuant to this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in be such capacity and shall inure to the benefit of the his heirs, successorsexecutors, and administrators. The Employer agrees that the undertakings made in this Section shall be binding on its successors or assigns and administrators shall survive the termination, amendment or restatement of the IndemniteePlan.
(d) The Company foregoing right to indemnification shall be in addition to such other rights as the Indemnitee may purchase enjoy as a matter of law or by reason of insurance coverage of any kind and maintain (or reimburse Shipping Master or its Affiliates for is in addition to and not in lieu of any rights to indemnification to which the cost of) insurance, on behalf Indemnitee may be entitled pursuant to the by-laws of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this AgreementEmployer.
(e) For the purposes of this Section 17Section, the Company following definitions shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.apply:
Appears in 3 contracts
Samples: Adoption Agreement (BSB Bancorp, Inc.), Deferred Compensation Plan (Del Monte Foods Co), Adoption Agreement (BMC Software Inc)
Indemnification. (a) To The Trust hereby agrees to indemnify each person who at any time serves as a Trustee or officer of the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, Trust (each Indemnitee (as defined belowsuch person being an “indemnitee”) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees liabilities and expenses), including amounts paid in satisfaction of judgments, fines, in compromise or as fines and penalties, interestand reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, settlements suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, civil or criminal, before any court or administrative or investigative, investigative body in which such Indemnitee he may be involved, or is threatened to be involved, may have been involved as a party or otherwiseotherwise or with which he may be or may have been threatened, while acting in any capacity set forth in this Article IV by reason of its status his having acted in any such capacity to the fullest extent consistent with state law and the 1940 Act, except with respect to any matter as an Indemnitee; provided, that the Indemnitee to which he shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, have acted in respect good faith in the reasonable belief that his action was in the best interest of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence Trust or, in the case of a any criminal matterproceeding, acted with knowledge as to which he shall have had reasonable cause to believe that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 . However, no indemnitee shall be made only out indemnified hereunder against any liability to any person or any expense of the assets such indemnitee arising by reason of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or willful misfeasance, (ii) have any obligation to contribute bad faith, (iii) gross negligence, or loan any monies or property to (iv) reckless disregard of the Company to enable it to effectuate such indemnificationduties involved in the conduct of his position (collectively, “disabling conduct”).
(b) To Notwithstanding the fullest extent permitted by lawforegoing, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant with respect to Section 17(a) in defending any claim, demand, action, suit or other proceeding shallvoluntarily prosecuted by any indemnitee as plaintiff, from time to time, indemnification shall be advanced by mandatory only if the Company prior to the final disposition prosecution of such claim, demand, action, suit or other proceeding upon receipt by such indemnitee (1) was authorized by a majority of the Trustees or (2) was instituted by the Company of any undertaking by indemnitee to enforce his or on behalf of her rights to indemnification hereunder in a case in which the Indemnitee indemnitee is found to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17such indemnification.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions indemnification set forth in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and this Declaration shall continue as to an Indemnitee a person who has ceased to serve in such capacity be a Trustee or officer of the Trust and shall inure to the benefit of the his or her heirs, successors, assigns executors and administrators of the Indemniteepersonal and legal representatives.
(d) The Company may purchase and maintain (No amendment or reimburse Shipping Master restatement of this Declaration or repeal of any of its Affiliates for the cost of) insurance, on behalf provisions shall limit or eliminate any of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against benefits provided to any liability that may be asserted against person who at any time is or expense that may be incurred by such Person in connection with the Company’s activities was a Trustee or such Person’s activities on behalf officer of the CompanyTrust or otherwise entitled to indemnification hereunder in respect of any act or omission that occurred prior to such amendment, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreementrestatement or repeal.
(e) For purposes of this Section 17Notwithstanding the foregoing, the Company no indemnification shall be deemed made hereunder unless there has been a determination (i) by a final decision on the merits by a court or other body of competent jurisdiction before whom the issue of entitlement to have requested an Indemnitee indemnification hereunder was brought that such indemnitee is entitled to serve indemnification hereunder, or (ii) in the absence of such a decision, by (1) a majority vote of a quorum of those Trustees who are neither “interested persons” of the Trust (as fiduciary defined in Section 2(a)(19) of an employee benefit plan whenever the performance by it of its duties 0000 Xxx) nor parties to the Company also imposes duties onproceeding (“Disinterested Non-Party Trustees”), that the indemnitee is entitled to indemnification hereunder, or otherwise involves services by(2) if such quorum is not obtainable or even if obtainable, it if such majority so directs, independent legal counsel in a written opinion concludes that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection with the plan or participants or beneficiaries expense of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to defending any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan proceeding shall be deemed to be for a purpose which is in, or not opposed to, authorized and made in accordance with the best interests of the Companyimmediately succeeding paragraph (f) below.
(f) The Trust shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Trust receives a written affirmation by the indemnitee of the indemnitee’s good faith belief that the standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Trust unless it is subsequently determined that the indemnitee is entitled to such indemnification and if a majority of the Trustees determine that the applicable standards of conduct necessary for indemnification appear to have been met. In no event may an Indemnitee subject addition, at least one of the Members to personal liability following conditions must be met: (i) the indemnitee shall provide adequate security for his undertaking, (ii) the Trust shall be insured against losses arising by reason of any lawful advances, or (iii) a majority of a quorum of the indemnification provisions set forth Disinterested Non-Party Trustees, or if a majority vote of such quorum so direct, independent legal counsel in this Agreementa written opinion, shall conclude, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.
(g) An Indemnitee The rights accruing to any indemnitee under these provisions shall not be denied indemnification in whole exclude any other right which any person may have or in part hereafter acquire under this Declaration, the By-Laws of the Trust, any statute, agreement, vote of Shareholders or Trustees who are “disinterested persons” (as defined in Section 17 because 2(a)(19) of the Indemnitee had an interest in the transaction with respect 0000 Xxx) or any other right to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreementhe or she may be lawfully entitled.
(h) The provisions of Subject to any limitations provided by the 1940 Act and this Section 17 are Declaration, the Trust shall have the power and authority to indemnify and provide for the benefit advance payment of expenses to employees, agents and other Persons providing services to the Trust or serving in any capacity at the request of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed Trust to create any rights the full extent corporations organized under the Delaware General Corporation Law may indemnify or provide for the benefit advance payment of any other expenses for such Persons, provided that such indemnification has been approved by a majority of the Trustees.
(i) No amendmentTrustee shall, modification as such, be obligated to give any bond or repeal of this Section 17 or any provision hereof shall in any manner terminate, reduce or impair other security for the right performance of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedhis duties hereunder.
(j) If this Section 17 No purchaser, lender, transfer agent or other person dealing with the Trustees or with any portion hereof officer, employee or agent of the Trust shall be invalidated bound to make any inquiry concerning the validity of any transaction purporting to be made by the Trustees or by said officer, employee or agent or be liable for the application of money or property paid, loaned, or delivered to or on any ground by any court the order of competent jurisdictionthe Trustees or of said officer, then employee or agent. Every obligation, contract, undertaking, instrument, certificate, Share, other security of the Company Trust, and every other act or thing whatsoever executed in connection with the Trust shall nevertheless indemnify and hold harmless each Person indemnified pursuant be conclusively taken to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated executed or done by the executors thereof only in their capacity as Trustees under this Declaration or in their capacity as officers, employees or agents of the Trust.
(k) The Trustees shall be entitled and empowered to the fullest extent permitted by applicable lawlaw to purchase with Trust assets and maintain insurance for the protection of the Trust Property, the Shareholders, Trustees, officers, employees and agents in such amount as the Trustees shall deem adequate to cover possible tort liability, and such other insurance as the Trustees in their sole judgment shall deem advisable.
(kl) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is Each Trustee and officer or was a Manager, Officer, employee, agent or trustee employee of the CompanyTrust shall, in the performance of its duties, be fully and (c) completely justified and protected with regard to any person who is act or was serving at any failure to act resulting from reliance in good faith upon the request books of account or other records of the Company Board as Trust, upon an opinion of counsel, or upon reports made to the Trust by any of the Trust’s officers or employees or by any advisor, administrator, manager, distributor, selected dealer, accountant, appraiser or other expert or consultant selected with reasonable care by the Trustees, officers or employees of the Trust, regardless of whether such counsel or expert may also be a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesTrustee.
Appears in 3 contracts
Samples: Amended and Restated Agreement and Declaration of Trust (DCA Total Return Fund), Agreement and Declaration of Trust (Dividend Capital Strategic Global Realty Fund), Agreement and Declaration of Trust (Dividend Capital Enhanced Income Fund)
Indemnification. (a) To The Company and its Subsidiaries, jointly and severally, hereby agree to hold harmless and indemnify the fullest extent permitted by law but subject Investors, Existing Holders and their respective direct and indirect subsidiaries, Affiliates and corporations, and each of their partners, officers, directors, employees, stockholders, agents, and representatives (collectively, referred to as the limitations expressly provided in this Agreement, each Indemnitee (as defined below“Indemnitees”) shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expensesattorneys’ fees), damages, judgments, fines, penaltiesamounts paid in settlements, interestor any other amounts that an Indemnitee incurs as a result of any claim or claims made against it in connection with any threatened, settlements pending or completed action, suit, arbitration, investigation or other amounts proceeding arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involvedout of, or is threatened relating to be involved, as a party or otherwise, by reason the Indemnitee’s performance of its status as an Indemniteeobligations or the exercise of its rights in accordance with the terms of this Agreement; provided, however, that the no Indemnitee shall not be indemnified and entitled to be held harmless if there has been a final or indemnified by the Company for acts, conduct or omissions by any Indemnitee involving gross negligence, intentional misconduct or knowing and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect culpable violation of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnificationlaw.
(b) To the fullest extent permitted by lawThe Company or its Subsidiaries shall reimburse, promptly following request therefor, all reasonable expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a) in defending connection with any claimthreatened, demand, pending or completed action, suit suit, arbitration, investigation or other proceeding shallarising out of, from time to timeor relating to, be advanced by the Company prior Indemnitees’ actions in connection with any transaction undertaken in connection with this Agreement, but only to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this extent permitted under Section 173.13(a) above.
(c) The indemnification Company’s and its Subsidiaries’ indemnity obligations set forth above are subject to the Indemnitees providing prompt written notice of a claim. The Company and its Subsidiaries shall control the defense of any such action and, at its discretion, may enter into a stipulation of discontinuance or settlement thereof; provided that the Company and its Subsidiaries may not discontinue any action or settle any claim in a manner that does not unconditionally release the Indemnitee or requires an admission by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the payment by an Indemnitee without such Indemnitee’s capacity as an Indemnitee and as to actions in any other capacityprior written approval. The Indemnitees shall, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with at the Company’s activities or such Person’s activities on behalf of the Companyand its Subsidiaries’ expense and reasonable request, regardless of whether cooperate with the Company would have the power to indemnify and its Subsidiaries in any such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 17, the Company defense and shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties make available to the Company also imposes duties onand its Subsidiaries at the Company’s and its Subsidiaries’ expense all those persons, documents (excluding attorney/client or otherwise involves services by, it to attorney work product materials) reasonably required by the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); Company and action taken or omitted by it with respect to any employee benefit plan its Subsidiaries in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit defense of any other Persons.
(i) No amendmentsuch action. The Indemnitees may, modification or repeal of this Section 17 or any provision hereof shall in any manner terminateat their expense, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting assist in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial servicesdefense.
Appears in 3 contracts
Samples: Investor Rights Agreement (Nupathe Inc.), Investor Rights Agreement (Nupathe Inc.), Investor Rights Agreement (Nupathe Inc.)
Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each Indemnitee (as defined below) all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which such any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, however, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 179.01, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any . Any indemnification pursuant to this Section 17 9.01 shall be made only out of the assets of the Company, it being agreed that no Member the Members shall (i) not be personally liable for such indemnification or (ii) and shall have any no obligation to contribute or loan lend any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 17(a9.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a determination that the final disposition of such claim, demand, action, suit or proceeding Indemnitee is not entitled to be indemnified upon receipt by the Company of any an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 179.01.
(c) The indemnification provided by this Section 17 9.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacitycapacity (including any capacity under the Underwriting Agreement (as such term is defined in the Partnership Agreement)), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse Shipping Master or its Affiliates for the cost of) insurance, insurance on behalf of the Indemnitees, the Company Board, and its Affiliates and such other Persons as the Company Board shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 179.01, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law Applicable Law shall constitute “fines” within the meaning of Section 17(a9.01(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which that is in, or not opposed to, in the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 17 9.01 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(hg) The provisions of this Section 17 9.01 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(ih) No amendment, modification or repeal of this Section 17 9.01 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 9.01 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(ji) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdictionTHE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 9.01 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable lawFAULT OR OTHER CONDUCT.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (SemGroup Energy Partners, L.P.), Limited Liability Company Agreement (SemGroup Energy Partners, L.P.), Limited Liability Company Agreement (Blueknight Energy Partners, L.P.)
Indemnification. (a) To Holdings shall indemnify Employee to the fullest extent permitted by Delaware law but subject to the limitations expressly provided in this Agreementagainst all costs, each Indemnitee expenses, liabilities and losses (as defined below) shall be indemnified and held harmless by the Company from and against any and all lossesincluding, claimswithout limitation, damages, liabilities, joint or several, expenses (including legal fees and expenses)attorneys’ fees, judgments, fines, penalties, interestERISA liabilities, settlements excise taxes and amounts paid in settlement) reasonably incurred by Employee in connection with a Proceeding. For the purposes of this Section, a “Proceeding” shall mean any action, suit or other amounts arising from any and all claims, demands, actions, suits or proceedingsproceeding, whether civil, criminal, administrative or investigative, in which such Indemnitee may be involvedEmployee is made, or is threatened to be involvedmade, as a party party, or otherwise, a witness by reason of its status the fact that he is or was an officer, director or employee of Holdings or is or was serving as an Indemnitee; providedofficer, director, member, employee, trustee or agent of any other entity at the request of Holdings.
(b) Holdings shall advance to Employee all reasonable and necessary costs and expenses incurred in connection with a Proceeding within 20 days after receipt by Holdings of a written request for such advance. Such request shall include an itemized list of the costs and expenses and an undertaking by Employee to repay to Holdings the amount of such advance if ultimately it shall be determined that the Indemnitee he is not entitled to be indemnified against such costs and expenses.
(c) Employee shall not be indemnified and held harmless entitled to indemnification under this Section unless Employee meets the standard of conduct specified under Delaware law. Notwithstanding the foregoing, to the extent permitted by law, neither Section 145(d) of the General Corporation Law of the State of Delaware nor any similar provision shall apply to indemnification under this Section, so that if there has been a final and non-appealable judgment entered Employee in fact meets the applicable standard of conduct (as ultimately determined by a court of competent jurisdiction determining that, or as ultimately determined by the arbitrator in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 17, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or gross negligence or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; any indemnification pursuant to this Section 17 shall be made only out of the assets of the Company, it being agreed that no Member shall (i) be personally liable for such indemnification or (ii) have any obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified arbitration pursuant to Section 17(a) in defending any claim16), demand, action, suit he shall be entitled to indemnification hereunder whether or proceeding shall, from time to time, be advanced not Holdings (whether by the Company Board of Directors of Holdings, the shareholders, independent legal counsel or other party) determines that such indemnification is proper or that he has met such applicable standard of conduct. Neither the failure of Holdings to have made such a determination prior to the final disposition commencement by Employee of such claim, demand, action, any suit or arbitration proceeding upon receipt seeking indemnification, nor a determination by Holdings that Employee has not met such applicable standard of conduct, shall create a presumption that Employee has not met the Company applicable standard of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 17.
(c) The indemnification provided by this Section 17 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemniteeconduct.
(d) The Company may purchase and maintain (Holdings shall be permitted to settle any Proceeding or reimburse Shipping Master claim in any manner other than as would impose liability on Employee for which he would not be entitled to indemnification or its Affiliates for the cost of) insuranceinsurance coverage hereunder. Employee shall not settle any proceeding without Holdings’ prior written consent, on behalf of the Company Board, its Affiliates and such other Persons as the Company Board shall determine, against any liability that may which consent will not be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreementunreasonably withheld.
(e) For purposes of this Section 17, the Company Holdings shall maintain an insurance policy or policies providing directors’ and officers’ liability insurance. Employee shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance covered by it of such policy or policies, in accordance with its duties or their terms, to the Company also imposes duties on, maximum extent of coverage available for any director or otherwise involves services by, it to the plan or participants or beneficiaries officer of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 17(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the CompanyHoldings.
(f) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee Employee shall not be denied indemnification in whole or in part under this Section 17 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 17 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit give Holdings prompt notice of any other Persons.
(i) No amendmentproceeding which may give rise to a claim for indemnification. Holdings shall have the right, modification or repeal of this Section 17 or any provision hereof shall in any manner terminateat its expense, reduce or impair to assume the right defense of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be assertedproceeding.
(j) If this Section 17 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person indemnified pursuant to this Section 17 as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Section 17 that shall not have been invalidated and to the fullest extent permitted by applicable law.
(k) For purposes hereof, “Indemnitee” means (a) the Company Board, (b) any person who is or was a Manager, Officer, employee, agent or trustee of the Company, and (c) any person who is or was serving at the request of the Company Board as a member, partner, director, officer, employee, partner, agent, fiduciary or trustee of another person, in each case, acting in such capacity, provided, that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Appears in 3 contracts
Samples: Employment Agreement (Amc Entertainment Inc), Employment Agreement (Amc Entertainment Inc), Employment Agreement (Marquee Holdings Inc.)
