Initial Indemnity. (a) The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto. (b) The Company shall indemnify the Indemnitee if or when he is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper. (c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought. (d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith. (e) Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof. (f) For purposes of this Agreement, references to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.
Appears in 1 contract
Samples: Officer Indemnification Agreement (Omnova Solutions Inc)
Initial Indemnity. (a) The Company shall indemnify the Indemnitee if who was or when he is a party or is threatened to be made a party to any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, proceeding (including any proceeding before any administrative or investigative legislative body or agency) (other than an action by or in the right of the Company), by reason of the fact that he is or was an or had agreed to become a director and officer of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"attorneys' fees), judgments, fines, and liabilities and/or amounts paid in settlement, settlement actually and reasonably incurred by or imposed upon the Indemnitee in connection therewith, including therewith and any appeal of or from any judgment or decision, therefrom if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful, or unless such indemnification is prohibited by the General Corporation Law of the State of Delaware ("DGCL"). The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere contendre or its equivalent, equivalent shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee if who was or when he is a party, party or is threatened to be made a party, party to any threatened, pending, pending or completed action, suit, suit or proceeding 2 -2- by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he is or was an officer or had agreed to become a director of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise against costs, against any and all Expenses expenses (including attorneys' fees), judgments, liabilities and/or amounts paid in settlement actually and reasonably incurred by the Indemnitee or imposed upon him in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, therefrom if the Indemnitee he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, Company and except that no indemnification pursuant to this Section 2(b) shall be made if such indemnification is prohibited by the DGCL or in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, unless and only to the extent that, that the court of common pleas or other court in which such action, suit, suit or proceeding was brought determinesshall determine upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other which the court shall deem proper.
(c) Any indemnification under Section To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections 2(a) or 2(b) hereof or in defense of any claim, issue or matter therein, he shall be indemnified against costs, expenses (including attorneys' fees), judgments, liabilities and/or amounts paid in settlement actually and reasonably incurred by or imposed upon him in connection therewith.
(d) Any indemnification under Sections 2(a) or 2(b) hereof (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification in accordance with Section 4 hereof or any applicable provision of the Indemnitee is proper in Restated Certificate of Incorporation of the circumstances because he has met Company (the applicable standard of conduct set forth in Section 2(a) "Charter"), By-Laws, other agreement, resolution or 2(b)otherwise. Such authorization determination shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, suit or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by in the Boardmanner provided below in this subsection (d)) which shall not be an attorney, or in a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, written opinion or (iii) by the shareholders stockholders of the Company (the "ShareholdersStockholders"). Independent legal counsel shall be designated by vote of a majority of the disinterested directors; provided, however, that if the Board is unable or (iv) fails to so designate, such designation shall be made by the court Indemnitee subject to the approval of common pleas the Company (which approval shall not be unreasonably withheld). Independent legal counsel shall not be any person or other court firm who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in which such action, suit, representing either the Company or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of in an action without prejudice, in defense to determine the Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of any action, suit, or proceeding referred such independent legal counsel and to in Section 2(aindemnify fully such counsel against costs and expenses (including attorneys' fees) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him such counsel in connection therewithwith this Agreement or the opinion of such counsel pursuant hereto.
(e) Expenses actually and reasonably incurred All expenses (including attorneys' fees) including by the Indemnitee in his capacity as a director or officer of the Company in defending any such a civil or criminal action, suit, suit or 3 -3- proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, suit or proceeding under in the procedure set forth in manner prescribed by Section 4(b) hereof.
(f) For purposes The Company shall not adopt any amendment to the Charter or By-Laws the effect of this Agreementwhich would be to deny, references diminish or encumber the Indemnitee's rights to indemnity pursuant to the Charter, By-Laws, the DGCL or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "other enterprises Effective Date") upon which the amendment was approved by the Board of Directors or the Stockholders, as the case may be. In the event that the Company shall include employee benefit plans; references adopt any amendment to "fines" the Articles or By-Laws the effect of which is to so deny, diminish or encumber the Indemnitee's rights to indemnity, such amendment shall include any excise taxes assessed on apply only to acts or failures to act occurring entirely after the Effective Date thereof unless the Indemnitee with respect to any employee benefit plan; references to "serving at the request shall have voted in favor of such adoption as a director or holder of record of the Company" shall include any service 's voting stock, as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereincase may be.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee if or when he is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper, or (ii) any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(f) For purposes of this Agreement, references to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper, or (ii) any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC").
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(f) For purposes of this Agreement, references to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.connection
Appears in 1 contract
Samples: Officer Indemnification Agreement (MPW Industrial Services Group Inc)
Initial Indemnity. (a) The Company shall will indemnify the Indemnitee if or when he or she was or is involved in any manner (including without limitation as a party or as a deponent or witness) or is threatened to be made a party to so involved in any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrativeadministrative or investigative, formal or investigative informal, and any appeals therefrom (a "Proceeding") (other than an action a Proceeding by or in the right of the Company), by reason of the fact that he or she is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employeepartner, member, manager trustee, employee or agent (each an "Authorized Capacity") of another business, foreign or nonprofit corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise (each "Another Entity"), or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, charges and expenses (including fees attorneys' and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"' fees), judgments, fines, fines and amounts paid in settlement, settlement actually and reasonably incurred by the Indemnitee him or her in connection therewith, including any appeal of or from any judgment or decision, with such Proceeding if the Indemnitee acted in good faith and in a manner which that he or she reasonably believed to be in in, or not opposed to to, the best interests of the Company, and, with respect 2 to any criminal action or proceedingProceeding, he the Indemnitee had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding Proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere or its equivalent, shall equivalent will not, of itself, adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not satisfy meet the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall will indemnify the Indemnitee if or when he or she was or is involved in any manner (including without limitation as a party, deponent or witness) or is threatened to be made a party, to so involved in any threatened, pending, or completed action, suit, or proceeding Proceeding by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he or she is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager or agent in an Authorized Capacity of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterpriseAnother Entity, against any and all Expenses costs, charges and expenses (including attorneys' and others' fees), and amounts paid in settlement not exceeding, in the judgment of the Board of Directors, the estimated expense of litigating the Proceeding to conclusion, actually and reasonably incurred by the Indemnitee him or her in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, such Proceeding if the Indemnitee acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall will be made in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefor, to be liable for negligence willful or intentional misconduct in the performance of his or her duty to the Company unless, and only to the extent thatextent, that the court of common pleas or other court in which such action, suit, or proceeding the Proceeding was brought determinesdetermines upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such costs, charges and expenses as such which the court of common pleas or other court shall deem deems proper.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action a Proceeding without prejudice, in the defense of any action, suit, or proceeding Proceeding referred to in Section 2(a) or Section 2(b), ) or in the defense of any claim, issue, issue or matter thereinin any such Proceeding, he shall be indemnified the Company will indemnify him or her against Expenses any and all costs, charges and expenses, including without limitation attorneys' and others' fees, actually and reasonably incurred by him or her in connection therewith.
(d) Any indemnification under Section 2(a), Section 2(b) or Section 2(c) (unless ordered by a court) will be made by the Company only as authorized in the specific case upon a determination, in accordance with Section 4, that such indemnification is proper in the circumstances because he or she has met the applicable standards of conduct set forth in Section 2(a) and Section 2(b) (the "Indemnification Standards"). Such determination will be made in the manner set forth in Section 4(b).
(e) Expenses Any and all costs, charges and expenses, including without limitation attorneys' and others' fees, actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall Proceeding will be paid by the Company as they are incurred and in advance of the final disposition of such action, suit, or proceeding under Proceeding in accordance with the procedure set forth in Section 4(b) hereof4(e).
(f) For purposes of Notwithstanding anything in this Agreement, references Agreement to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services bycontrary, the Indemnitee will not be entitled to indemnification or advancement of expenses pursuant hereto in connection with respect any Proceeding initiated by the Indemnitee against the Company (except for any Proceeding initiated by the Indemnitee pursuant to an employee benefit plan, its participants Section 6) unless the Company has joined in or beneficiaries; references consented to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries initiation of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereinProceeding.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing applicable standard of conduct to the extent applicable theretoconduct.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper, or (ii) any action or suit in which the only liability asserted against Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel counsel, a copy of which will be delivered to Indemnitee, (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determinationdetermination ("Independent Counsel"), or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) . Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(fe) For purposes of this Agreement, references to "other enterprises enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee employee, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or and beneficiaries of such employee an employee-benefit plan, plan he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.
Appears in 1 contract
Samples: Director Indemnification Agreement (National Processing Inc)
Initial Indemnity. (a) The Company shall will indemnify the Indemnitee if or when he or she was or is involved in any manner (including without limitation as a party party, a deponent or a witness) or is threatened to be made a party to so involved in any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrativeadministrative or investigative, formal or investigative informal, and any appeals therefrom (a "Proceeding") (other than an action a Proceeding by or in the right of the Company), by reason of the fact that he or she is or was an officer or had agreed to become a director (including service as a member of any committee of directors), officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a directordirector (including service as a member of any committee of directors), officer, partner, member, trustee, officer, employee, member, manager employee or agent (each an "Authorized Capacity") of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise (each "Another Entity"), or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, charges and expenses (including fees attorneys' and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"' fees), judgments, fines, fines and amounts paid in settlement, settlement actually and reasonably incurred by the Indemnitee him or her in connection therewith, including any appeal of or from any judgment or decision, with such Proceeding if the Indemnitee acted in good faith and in a manner which that he or she reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceedingProceeding, he the Indemnitee had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding Proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere or its equivalent, shall equivalent will not, of itself, adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not satisfy meet the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall will indemnify the Indemnitee if or when he or she was or is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding Proceeding by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he or she is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager or agent in an Authorized Capacity of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterpriseAnother Entity, against any and all Expenses costs, charges and expenses (including attorneys' and others' fees) actually and reasonably incurred by the Indemnitee him or her in connection with the defense investigation, preparation, defense, settlement or settlement thereof or any appeal of or from any judgment or decision, such Proceeding if the Indemnitee acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall will be made in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent thatextent, that the court Court of common pleas Chancery or other the court in which such action, suit, or proceeding the Proceeding was brought determinesdetermines upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as which the Court of Chancery or such court of common pleas or other court shall deem deems proper.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action a Proceeding without prejudice, in the defense of any action, suit, or proceeding Proceeding referred to in Section 2(a) or Section 2(b), ) or in the defense of any claim, issue, issue or matter thereinin any such Proceeding, the Company will indemnify him or her against any and all costs, charges and expenses, including without
(d) Any indemnification under Section 2(a) or Section 2(b) (unless ordered by a court) will be made by the Company only as authorized in the specific case upon a determination, in accordance with Section 4, that such indemnification is proper in the circumstances because he shall or she has met the applicable standards of conduct set forth in Section 2(a) and Section 2(b) (the "Indemnification Standards"). Such determination will be indemnified against Expenses actually and reasonably incurred by him made in connection therewiththe manner set forth in Section 4(b).
(e) Expenses Any and all costs, charges and expenses, including without limitation attorneys' and others' fees, actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall Proceeding will be paid by the Company as they are incurred and in advance of the final disposition of such action, suit, or proceeding under Proceeding in accordance with the procedure set forth in Section 4(b) hereof4(e).
(f) For purposes of Notwithstanding anything in this Agreement, references Agreement to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services bycontrary, the Indemnitee will not be entitled to indemnification or advancement of expenses pursuant hereto in connection with respect any Proceeding initiated by the Indemnitee against the Company (except for any Proceeding initiated by the Indemnitee pursuant to an employee benefit plan, its participants Section 6) unless the Company has joined in or beneficiaries; references consented to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries initiation of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereinProceeding.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a partnership, limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including without limitation fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which that he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a partnership, limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper, or (ii) any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors Directors who were not and are not parties to or threatened with such action, suit, or proceeding, proceeding or (ii) if such a quorum of disinterested directors Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) . Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(fe) For purposes of this Agreement, references to "other enterprises enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.employee
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to which the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper, or (ii) any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC").
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) . Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(fe) For purposes of this Agreement, references to "other enterprises enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee employee, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein.
Appears in 1 contract
Samples: Director Indemnification Agreement (Elder Beerman Stores Corp)
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including including, without limitation, fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "“Expenses"”), judgments, fines, fines and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and. In addition, with respect to any criminal action or proceeding, he indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any claim, issue, action or matter as to suit in which the only liability asserted against the Indemnitee is adjudged pursuant to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances Section 1701.95 of the case Ohio Revised Code (the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem proper“ORC”).
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "“Board"”) by a majority vote of a quorum consisting of directors Directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors Directors is not available obtainable or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "“Shareholders"”), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof).
(f) For purposes of this Agreement, references to "“other enterprises enterprises” shall include employee benefit plans; references to "“fines" ” shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "“serving at the request of the Company" ” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; and references to the singular shall include the plural and vice versa; .
(g) No amendment to the word including is used by way Amended Articles of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan Incorporation of the CompanyCompany (the “Articles”) or the Regulations shall deny, if diminish, or encumber the Indemnitee acted in good faith and in a manner he reasonably believed Indemnitee’s rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed given effect. No amendment to the best interests Articles or the Regulations shall deny, diminish, or encumber the Indemnitee’s rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the “Effective Date”) upon which the amendment was approved by the Shareholders, except to the extent that such amendment is required by law to be given effect. In the event that the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Company" as referred Indemnitee’s rights to hereinindemnity pursuant to the Articles, the Regulations, the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof.
Appears in 1 contract
Samples: Indemnification Agreement (Brush Engineered Materials Inc)
Initial Indemnity. (a) The Company shall indemnify the Indemnitee if who was or when he is a party or is threatened to be made a party to any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, proceeding (including any proceeding before any administrative or investigative legislative body or agency) (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer or had agreed to become a director [and/or officer] of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"attorneys’ fees), judgments, fines, and liabilities and/or amounts paid in settlement, settlement actually and reasonably incurred by or imposed upon the Indemnitee in connection therewith, including therewith and any appeal of or from any judgment or decision, therefrom if the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful, or unless such indemnification is prohibited by the General Corporation Law of the State of Delaware (“DGCL”). The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere contendre or its equivalent, equivalent shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee if who was or when he is a party, party or is threatened to be made a party, party to any threatened, pending, pending or completed action, suit, suit or proceeding by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he is or was an officer or had agreed to become a director [and/or officer] of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise against costs, against any and all Expenses expenses (including attorneys’ fees), judgments, liabilities and/or amounts paid in settlement actually and reasonably incurred by the Indemnitee or imposed upon him in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, therefrom if the Indemnitee he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, Company and except that no indemnification pursuant to this Section 2(b) shall be made if such indemnification is prohibited by the DGCL or in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, unless and only to the extent that, that the court of common pleas or other court in which such action, suit, suit or proceeding was brought determinesshall determine upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other that the court shall deem proper.
(c) Any indemnification under Section To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections 2(a) or 2(b) hereof or in defense of any claim, issue or matter therein, he shall be indemnified against costs, expenses (including attorneys’ fees), judgments, liabilities and/or amounts paid in settlement actually and reasonably incurred by or imposed upon him in connection therewith.
(d) Any indemnification under Sections 2(a) or 2(b) hereof (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification in accordance with Section 4 hereof or any applicable provision of the Indemnitee is proper in Restated Certificate of Incorporation of the circumstances because he has met Company (the applicable standard of conduct set forth in Section 2(a) “Charter”), By-Laws, other agreement, resolution or 2(b)otherwise. Such authorization determination shall be made (i) by the Board of Directors of the Company (the "“Board"”) by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, suit or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by in the Boardmanner provided below in this subsection (d)) which shall not be an attorney, or in a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, written opinion or (iii) by the shareholders stockholders of the Company (the "Shareholders"“Stockholders”). Independent legal counsel shall be designated by vote of a majority of the disinterested directors; provided, however, that if the Board is unable or (iv) fails to so designate, such designation shall be made by the court Indemnitee subject to the approval of common pleas the Company (which approval shall not be unreasonably withheld). Independent legal counsel shall not be any person or other court firm who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in which such action, suit, representing either the Company or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of in an action without prejudice, in defense to determine the Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of any action, suit, or proceeding referred such independent legal counsel and to in Section 2(aindemnify fully such counsel against costs and expenses (including attorneys’ fees) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him such counsel in connection therewithwith this Agreement or the opinion of such counsel pursuant hereto.
(e) Expenses actually and reasonably incurred All expenses (including attorneys’ fees) including by the Indemnitee in his capacity as a director [and/or officer] of the Company in defending any such a civil or criminal action, suit, suit or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, suit or proceeding under in the procedure set forth in manner prescribed by Section 4(b) hereof.
(f) For purposes The Company shall not adopt any amendment to the Charter or By-Laws the effect of this Agreementwhich would be to deny, references diminish or encumber the Indemnitee’s rights to "indemnity pursuant to the Charter, By-Laws, the DGCL or any other enterprises applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the “Effective Date”) upon which the amendment was approved by the Board of Directors or the Stockholders, as the case may be. In the event that the Company shall include employee benefit plans; references adopt any amendment to "fines" the Articles or By-Laws the effect of which is to so deny, diminish or encumber the Indemnitee’s rights to indemnity, such amendment shall include any excise taxes assessed on apply only to acts or failures to act occurring entirely after the Effective Date thereof unless the Indemnitee with respect to any employee benefit plan; references to "serving at the request shall have voted in favor of such adoption as a director or holder of record of the Company" shall include any service ’s voting stock, as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereincase may be.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer a Director of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including without limitation fees and expenses of attorneys or and/or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection therewith, therewith including any appeal of or from any judgment or decision, if the Indemnitee acted in good faith unless it is proved by clear and convincing evidence in a manner which he reasonably believed court of competent jurisdiction that the Indemnitee's action or failure to be in act involved an act or not opposed omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, and. In addition, with respect to any criminal action or proceeding, he indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo no lo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee Indemnitee, if or when he is a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an officer a Director of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, if the Indemnitee acted in good faith unless it is proved by clear and convincing evidence in a manner he reasonably believed court of competent jurisdiction that the Indemnitee's action or failure to be in act involved an act or not opposed omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any claim, issue, action or matter as to suit in which the only liability asserted against Indemnitee is adjudged pursuant to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent that, the court of common pleas or other court in which such action, suit, or proceeding was brought determines, notwithstanding any adjudication of liability, that in view of all the circumstances Section 1701.95 of the case the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court of common pleas or other court shall deem properOhio Revised Code.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors Directors who were not and are not parties to or threatened with such action, suit, or proceeding, proceeding or (ii) if such a quorum of disinterested directors Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) . Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(fe) For purposes of this Agreement, references to "other enterprises enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee employee, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; and references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereinVICE VERSA.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee if when the Indemnitee becomes involved in any manner (including as a party, a deponent or when he is a party witness) or is threatened to be made a party to so involved in any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrativeadministrative or investigative, formal or investigative informal, and any appeals therefrom (a "Proceeding") (other than an action a Proceeding by or in the right of the Company), by reason of the fact that he is or was an officer or had agreed to become a director (including service as a member of one or more Committees), officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a directordirector (including service as a member of one or more Committees), officer, partner, member, trustee, officer, employee, member, manager employee or agent (each an "Authorized Capacity") of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise (each "Another Entity"), or by reason of any action alleged to have been taken or omitted in any such capacitycapacity (including as a member of one or more Committees), against any and all costs, charges, charges and expenses (including fees attorneys' and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"' fees), judgments, fines, fines and amounts paid in settlement, settlement actually and reasonably incurred by the Indemnitee him or her in connection therewith, including any appeal of or from any judgment or decision, with such Proceeding if the Indemnitee acted in good faith and in a manner which that he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceedingProceeding, he the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding Proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere or its equivalent, shall equivalent will not, of itself, adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not satisfy meet the foregoing standard of conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee if or when he is becomes a party, party or is threatened to be made a party, party to any threatened, pending, or completed action, suit, or proceeding Proceeding by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager or agent in an Authorized Capacity of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterpriseAnother Entity, against any and all Expenses costs, charges and expenses (including attorneys' and others' fees) actually and reasonably incurred by the Indemnitee him or her in connection with the defense investigation, preparation, defense, settlement or settlement thereof or any appeal of or from any judgment or decision, such Proceeding if the Indemnitee acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall will be made in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, and only to the extent thatextent, that the court Court of common pleas Chancery or other the court in which such action, suit, or proceeding the Proceeding was brought determinesshall determine upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as the Court of Chancery or such court of common pleas or other court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of a Proceeding without prejudice, in the defense of any
(d) Any indemnification under Section 2(a) or Section 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination determination, in accordance with Section 4, that such indemnification of the Indemnitee is proper in the circumstances because he the Indemnitee has met the applicable standard standards of conduct set forth in Section 2(a) or and Section 2(b) (the "Indemnification Standards"). Such authorization shall determination will be made (i) by in the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to manner set forth in Section 2(a) or 2(b4(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith.
(e) Expenses Any and all costs, charges and expenses, including attorneys' and others' fees, actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall Proceeding will be paid by the Company as they are incurred and in advance of the final disposition of such action, suit, or proceeding under Proceeding in accordance with the procedure set forth in Section 4(b) hereof4(e).
(f) For purposes of Notwithstanding anything in this Agreement, references Agreement to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services bycontrary, the Indemnitee shall not be entitled to indemnification or advancement of expenses pursuant hereto in connection with respect any Proceeding initiated by the Indemnitee against the Company (except for any Proceeding initiated by the Indemnitee pursuant to an employee benefit plan, its participants Section 6) unless the Company has joined in or beneficiaries; references consented to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries initiation of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereinProceeding.
Appears in 1 contract
Initial Indemnity. (a) The Except with respect to an action, suit or proceeding by or in the name of the Company as provided in Section 2(b) below, the Company shall indemnify the Indemnitee if or when he was or is a party or is threatened to be made a party to any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, investigative or investigative (other than an action by or in the right of the Company)criminal, by reason of the fact that he is or was an or had agreed to become a director or officer of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred (including attorneys' and others' fees and expenses and reasonable time-based fees of the Indemnitee as determined by a court of competent jurisdiction or, to as the extent permitted by law, a majority of disinterested directors (collectively "Expenses")), damages, judgments, fines, fines and amounts paid in settlement, settlement actually and reasonably incurred by the Indemnitee him in connection therewith, including therewith and any appeal of or from any judgment or decision, therefrom if the Indemnitee he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, Company and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere contendre or its equivalent, equivalent shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto.
(b) The With respect to an action, suit or proceeding by or in the name of the Company, the Company shall indemnify the Indemnitee if or when he was or is a party, party or is threatened to be made a party, party to any such threatened, pending, pending or completed action, suit, suit or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee he is or was an or had agreed to become a director or officer of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterpriseenterprise against costs, against any charges and all Expenses actually and reasonably incurred by the Indemnitee him in connection with the defense or settlement thereof or therewith and any appeal of or from any judgment or decision, therefrom if the Indemnitee he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. However, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, unless (and only to the extent that, ) the court Delaware Court of common pleas Chancery or other the court in which such action, suit, suit or proceeding was brought determinesshall determine upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as costs, charges and Expenses which the Delaware Court of Chancery or such court of common pleas or other court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections 2(a) or 2(b) hereof or in defense of any claim, issue or matter therein, he shall be indemnified against costs, charges and Expenses actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Section Sections 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification in accordance with Section 4 hereof or any applicable provision of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) certificate, bylaws, other agreement, resolution or 2(b)otherwise. Such authorization determination shall be made (i) by the Board of Directors of the Company (the "Board") ), by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, suit or proceeding, proceeding or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum of disinterested directors so directs, in a written opinion by independent legal counsel (designated for such purpose by in the Boardmanner provided below in this subsection (d)) which shall not be an attorney, or in a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, written opinion or (iii) by the shareholders stockholders of the Company (the "ShareholdersStockholders"). Independent legal counsel shall be designated by vote of a majority of the disinterested directors; provided, however, that if the Board is unable or (iv) fails to so designate, such designation shall be made by the court Indemnitee. Independent legal counsel shall not be any person or firm who, under the applicable standards of common pleas professional conduct then prevailing, would have a conflict of interest in representing either the Company or other court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of in an action without prejudiceto determine the Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of such independent legal counsel and to indemnify fully such counsel against costs, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses charges and expenses actually and reasonably incurred by him such counsel in connection therewithwith this Agreement or the opinion of such counsel pursuant hereto.
(e) All costs, charges and Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section for which indemnification is available under Sections 2(a) or and 2(b), or in defense of any claim, issue, or matter therein, ) shall be paid by the Company as they are incurred in advance of the final disposition of such the action, suit, suit or proceeding under giving rise to the procedure set forth indemnification. Such payment shall be made immediately in the manner described by Section 4(b) hereof.
(f) For purposes The Company shall not adopt any amendment to the certificate or bylaws the effect of this Agreementwhich would be to deny, references diminish or encumber the Indemnitee's rights to indemnity pursuant to the certificate, bylaws, the General Corporation Law of the State of Delaware (the "DGCL"), or any other enterprises applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the Board or the Stockholders, as the case may be. In the event that the Company shall include employee benefit plans; references adopt any amendment to "fines" the certificate or bylaws the effect of which is to so deny, diminish or encumber the Indemnitee's rights to indemnity, such amendment shall include any excise taxes assessed on apply only to acts or failures to act occurring entirely after the Effective Date thereof unless the Indemnitee with respect to any employee benefit plan; references to "serving at the request shall have expressly agreed otherwise in writing or voted in favor of such adoption as a director or holder of record of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to herein's voting stock.
Appears in 1 contract
Initial Indemnity. (a) The Company shall indemnify the Indemnitee if or ----------------- when he was or is a party or is threatened to be made a party to any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, administrative or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges and expenses being herein jointly referred to as "Expenses"attorneys' fees), judgments, fines, fines and amounts paid in settlementsettlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by the Indemnitee in connection therewithwith such action, including suit or proceeding and any appeal of or from any judgment or decision, if therefrom it the Indemnitee acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere contendre or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy act in good faith and in a manner which the foregoing standard of conduct Indemnitee reasonably believed to be in or not opposed to the extent applicable theretobest interests of the Company, or, with respect to any criminal action or proceeding, that the Indemnitee had reasonable cause to believe that the Indemnitee's conduct was unlawful.
(b) The Company shall indemnify the Indemnitee if or when he was or is a party, party or is threatened to be made a party, party to any threatened, pending, pending or completed action, suit, suit or proceeding by or in the right of the Company to procure a judgment in its favor, favor by reason of the fact that the Indemnitee he is or was an officer or had agreed to become a director, officer, employee or agent of the Company Company, or is or was serving or had agreed to serve at the request of the Company as a director, trustee, officer, employee, member, manager employee or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, against any and all Expenses expenses (including attorneys' fees) actually and reasonably incurred by the Indemnitee him in connection with the defense or settlement thereof of such action or suit (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) or any appeal of or from any judgment or decision, therefrom if the Indemnitee he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and that except that no indemnification pursuant to this Section 2(b) shall be made in respect of any claim, issue, issue or matter as to which the Indemnitee is shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless, unless and only to the extent that, that the court Court of common pleas Chancery or other the court in which such action, suit, suit or proceeding was brought determinesshall determine upon application that, notwithstanding any despite the adjudication of liability, that liability but in view of all the circumstances of the case case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses as which the Court of Chancery or such court of common pleas or other court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the merits or otherwise, including without limitation the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections 1(a) or 1(b) hereof or in defense of any claim, issue or matter therein, he shall be indemnified against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Section 2(aSections 1(a) or 2(b1(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination determination, in accordance with Sections 1(d) and 3 hereof or any applicable provision of the Certificate, the Bylaws, other agreement, resolution or otherwise, that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(aSections 1(a) or 2(b1(b). Such authorization determination shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of directors who were not and are not parties to or threatened with such action, suit, suit or proceeding, or (ii) if such a quorum of disinterested directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by in the Boardmanner provided below in this subsection (d)) which shall not be an attorney, or in a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determinationwritten opinion, or (iii) by the shareholders stockholders of the Company (the "ShareholdersStockholders"). Independent legal counsel shall be designated by vote of a majority of the disinterested directors; provided, however, that if the Board is -------- ------- unable or (iv) fails to so designate, such designation shall be made by the court Indemnitee subject to the approval of common pleas the Company (which approval shall not be unreasonably withheld). Independent legal counsel shall not be any person or other court firm who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in which such action, suit, representing either the Company or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of in an action without prejudiceto determine the Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of such independent legal counsel and to indemnify fully such counsel against costs, in defense of any action, suit, or proceeding referred to in Section 2(acharges and expenses (including attorneys' and others' fees and expenses) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him such counsel in connection therewithwith this Agreement or the opinion of such counsel pursuant hereto.
(e) Expenses actually All expenses (including without limitation attorneys' and reasonably others' fees and expenses) incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof.
(f) For purposes of this Agreement, references to "other enterprises shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service his capacity as a director, officer, employee or agent of the Company in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding in accordance with Section 3(b) hereof.
(f) The Company shall not adopt any amendment to the Certificate or the Bylaws the effect of which imposes duties onwould be to deny, diminish or involves services byencumber the Indemnitee's rights to indemnity pursuant to the Certificate, the Indemnitee with respect Bylaws, the General Corporation Law of the State of Delaware (the "GCL") or any other applicable law as applied to an employee benefit plan, its participants any act or beneficiaries; references failure to act occurring in whole or in part prior to the masculine date (the "Effective Date") upon which the amendment was approved by the Board or the Stockholders, as the case may be. In the event that the Company shall include the feminine; references adopt any amendment to the singular Certificate or Bylaws the effect of which is to so deny, diminish or encumber the Indemnitee's rights to indemnity, such amendment shall include apply only to acts or failures to act occurring entirely after the plural and vice versa; the word including is used by way of illustration only and not by way of limitation; and with respect to conduct by Indemnitee in his capacity as a trustee, administrator or other fiduciary of any employee benefit plan of the Company, if the Indemnitee acted in good faith and in a manner he reasonably believed to be in the interest of the participants or beneficiaries of such employee benefit plan, he shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to hereinEffective Date thereof.
Appears in 1 contract
Samples: Indemnification Agreement (Rightnow Technologies Inc)
