Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the following: (i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company; (ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; (iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law; (iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or (v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication). (b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following: (i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine; (ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or (iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Indemnification Agreement (GigaCloud Technology Inc), Indemnification Agreement (GigaCloud Technology Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Separation Agreement (Active Power Inc), Indemnification Agreement (Crossroads Systems Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee’s conduct that is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee’s conduct that is the subject of an action, suit or proceeding described in Section 8(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised 10(b) hereof) initiated by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Indemnification Agreement (Nu Skin Enterprises Inc), Indemnification Agreement (Nu Skin Enterprises Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Indemnification Agreement (Coldwater Creek Inc), Indemnification Agreement (Endosonics Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant The Company shall not be obligated to Section 2 hereof shall be paid by the Company for any of the followingindemnify Employee:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee Employee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or any similar provisions provision of any federal, state or local statutory law;
(ivb) prior to a Change of Control, on account of any Proceeding Employee's conduct from which Employee derived an improper personal benefit;
(c) on account of Employee's conduct that he believed to be contrary to the extent best interests of the Company or its shareholders, or that was not done in good faith;
(d) on account of Employee's conduct that constituted a knowing violation of law;
(e) on account of Employee's conduct which constituted a violation of the Indemnitee Employee's duties to the Company or its shareholders;
(f) for which payment is a plaintiffdue Employee under an insurance policy;
(g) if indemnification is not lawful;
(h) in connection with any proceeding (or part thereof) initiated by Employee, a counter-complainant or a cross-complainant therein unless (other than an action pursuant i) such indemnification is expressly required to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under be made by law, (ii) the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding proceeding was authorized in the specific case by action of the Board of Directors; or
Directors of the Company, or (viii) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Code;
(bi) In addition with respect to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an any action by or in the right of the Company shall be paid by the Company for any of the followingCompany:
(i) in respect of any claim, issue or matter as to which i. if the Indemnitee shall have been Employee is adjudged in a final judgment to be liable to the Company because of Employee's conduct;
ii. for willful misconduct expenses incurred in the performance defending a pending action which is settled or otherwise disposed of the Indemnitee’s duty without court approval; or
iii. to the Company and its shareholdersextent, unless and only to the extent extent, that indemnification with respect to such action (i) would be inconsistent with the court in which such Proceeding is Certificate or was pending shall determine upon application thatBylaws, in view of all the circumstances or a resolution of the case, shareholders or agreement of the Indemnitee is fairly Company prohibiting or otherwise limiting such indemnification and reasonably entitled to indemnity for expenses and then only to in effect at the extent that time of the court shall determine;
accrual of the action or (ii) on account would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless the indemnification has been approved by the shareholders of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation Company (with the shares of law; or
(iii) with respect the Employee not being entitled to any transaction from which the Indemnitee derived an improper personal benefitvote thereon).
Appears in 2 contracts
Samples: Employment Agreement (Entrada Networks Inc), Employment Agreement (Entrada Networks Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any claim or Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law;
(ivlaw if the final, nonappealable judgment of a court of competent jurisdiction finds Indemnitee to be liable for disgorgement under Section 16(b) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Act;
(b) In addition on account of Indemnitee’s conduct that is established by a final, nonappealable judgment of a court of competent jurisdiction as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) for which payment is actually made to those limitations set forth above in paragraph Indemnitee under (ai) a valid and collectible insurance policy, including under any policy of this Section 3insurance purchased and maintained on Indemnitee’s behalf by the Corporation or (ii) under a valid and enforceable indemnity clause, no bylaw, or agreement, including, but not limited to, an indemnity clause, bylaw, or agreement relating to another corporation, partnership, joint venture, trust, or other enterprise for which Indemnitee is or was serving as a director or officer at the request of the Corporation; provided, that indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) Corporation in respect of any claimexcess beyond payment actually received by Indemnitee under such insurance policy, issue clause, bylaw or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company agreement;
(d) if and its shareholders, unless and only to the extent that indemnification is contrary to law, either as a matter of public policy, or under the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances provisions of the caseFederal Securities Act of 1933, as amended, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to Securities Exchange Act of 1934, as amended, the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts DGCL, or omissions that involve intentional misconduct or a knowing and culpable violation of any other applicable law; or
(e) in connection with any Proceeding (or part thereof) initiated by Indemnitee, against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Corporation has joined in the Proceeding (or relevant part thereof), (iii) with respect the Board has consented to any transaction from which the Indemnitee derived an improper personal benefitinitiation of such Proceeding, (iv) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the DGCL, or (v) the Proceeding (or relevant part thereof) is initiated pursuant to Section 12 hereof.
Appears in 2 contracts
Samples: Indemnification Agreement (Actinium Pharmaceuticals, Inc.), Indemnification Agreement (Actinium Pharmaceuticals, Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses Losses to be indemnified thereunder exceeds the sum of such losses Losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for (i) an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) and amendments thereto or similar provisions of any federal, state or local statutory law, (ii) any reimbursement of the Corporation by Indemnitee of any bonus or other incentive-based or equity-based compensation or out of any profits realized from the sale of securities, in each case as may be required by the Xxxxxxxx-Xxxxx Act of 2002, or pursuant to any compensation recovery policy of the Corporation that may be adopted in compliance with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010;
(ivd) prior on account of Indemnitee’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of Indemnitee’s conduct which is the subject of a Change of Control, Proceeding described in Section 8(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 11(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Indemnity Agreement (Crossroads Systems Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
(vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 2 contracts
Samples: Indemnification Agreement (Iasia Works Inc), Indemnification Agreement (Iasiaworks Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 4 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(iia) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiib) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state state, or local statutory law;
(ivc) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition regards to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action Proceedings not by or in the right of Corporation, on account of Indemnitee’s conduct which is not in good faith and in a manner which Indemnitee did not reasonably believe to be in, or not opposed to, the Company shall be paid by the Company for any best interest of the following:Corporation and with respect to criminal action, if Indemnitee had reasonable cause to believe Indemnitee’s conduct was unlawful;
(id) in respect regards to those Proceedings by or in the right of any claimCorporation, issue or matter as to on account of Indemnitee’s conduct which the Indemnitee shall have been adjudged is not in good faith and in a final judgment manner which Indemnitee did not reasonably believe to be in, or not opposed to, the best interest of Corporation, as well as when Indemnitee has been finally adjudged to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s duty to the Company and its shareholders, Corporation unless and only to the extent that the court in which such Proceeding is or was pending shall determine determines upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that such Liabilities which the court shall determinedeems proper;
(iie) on account if a final decision by a Court having jurisdiction in the matter determines that such indemnification is not lawful;
(f) for any Liabilities to Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of the Indemnitee’s acts defense, except with respect to Proceedings brought to establish or omissions that involve intentional misconduct or enforce a knowing and culpable violation of lawright to indemnification under this Agreement; or
(iiig) in respect of any fines and/or penalties imposed upon Indemnitee by the Securities and Exchange Commission in connection with respect to any transaction from which enforcement action of the Indemnitee derived Commission, including any settlement of such an improper personal benefitaction.
Appears in 2 contracts
Samples: Indemnification Agreement (Streamline Health Solutions Inc.), Indemnification Agreement (Lanvision Systems Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (A) such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or and (B) any settlement pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Director if it shall be determined by a final judgment without right of appeal, or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of Director's acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, law;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) Director unless such Proceeding proceeding was authorized in by the specific case by action uninterested directors of the Board of DirectorsCorporation; or
(vvi) if a final judgment decision without right of appeal by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Director believed or believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Director;
(ii) with respect to any transaction from which Director derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Director's duties to the corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing a Director's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director's duties to the Corporation or its shareholders;
(v) to the extent prohibited by Section 144 of the Delaware general Corporation Law, entitled "Interested Directors; Quorum;"
(vi) in respect of any claim, issue or matter as to which the Indemnitee Director shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s duty Director's duties to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Director is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the such court shall determine;
(iivii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; orand
(iiiviii) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 2 contracts
Samples: Indemnification Agreement (Ants Software Inc), Indemnification Agreement (Ants Software Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 1 and 2 hereof of this Agreement shall be paid by the Company for any of to the followingextent that:
(ia) payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claims of Indemnitee under such insurance policy or policies to the extent of the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the amount Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained is paid by the Company;
(iib) in respect Indemnitee is indemnified by the Company otherwise than pursuant to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawthis Agreement;
(iiic) on account of any Proceeding in which final judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes § 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or other similar provisions of any federal, state or local statutory law;
(ive) prior to a Change of Control, on account of any Proceeding Indemnitee’s conduct giving rise to the extent that the Indemnitee claim for indemnification is finally adjudged by a plaintiffcourt of competent jurisdiction to have been a breach of fiduciary duty which involved intentional misconduct, a counter-complainant fraud or a cross-complainant therein knowing violation of the law; and/or
(other than an action pursuant to Section 8 f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other Proceeding to enforce this Agreement proceeding which is initiated or maintained by or on behalf of Indemnitee, or any suit or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding by Indemnitee in any Proceedingagainst the Company or its directors, officers, employees or other agents, unless (i) unless such Proceeding indemnification is expressly required by Nevada law; (ii) the suit or other proceeding was expressly authorized in the specific case by action an official act of the Board of Directors; or
Directors of the Company or (viii) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Nevada law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 2 contracts
Samples: Indemnification Agreement (Davi Luxury Brand Group, Inc.), Indemnification Agreement (EnerJex Resources, Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 or 3 hereof shall be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee Covered Agent solely for an accounting of profits made from the purchase or sale by the Indemnitee Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the as defined below) (“Exchange ActSection 16(b)”) ), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b), Covered Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Covered Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Covered Agent for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Covered Agent ultimately establishes in any Proceeding that no recovery of such profits from Covered Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) prior for which payment is actually made to Covered Agent under a Change of Controlvalid and collectible insurance policy or under a valid and enforceable indemnity clause, on account bylaw or agreement, except in respect of any Proceeding to the extent that the Indemnitee is a plaintiffexcess beyond payment under such insurance, a counter-complainant clause, bylaw or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; oragreement;
(vc) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of applicable law; or
(d) in connection with any Proceeding (or part thereof) initiated by Covered Agent, or any Proceeding by Covered Agent against the Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the Board, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the DGCL or any transaction from which other applicable law, (iv) the Indemnitee derived an improper personal benefitProceeding is initiated pursuant to Section 9 hereof, or (v) the Proceeding initiated by Covered Agent is a cross-claim or counter-claim.
Appears in 2 contracts
Samples: Indemnification Agreement (Ddi Corp), Indemnification Agreement (SRS Labs Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the following:
(i) except to indemnify the Indemnitee for any expenses incurred by the Indemnitee in connection with any Proceeding for which payment is actually made to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ under a valid and Officers’ Insurance collectible insurance policy purchased and maintained by the Company, except in respect of any excess beyond the amount of payment under such insurance; or for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that initiated or brought voluntarily by the Indemnitee is and not by way of defense, except with respect to Proceedings brought to establish or enforce a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant right to Section 8 or other Proceeding to enforce indemnification under this Agreement or any other indemnification rights statute or law or otherwise as required under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of the Indemnitee’s conduct that is the subject of any Proceeding described in Section 7(b)(ii) hereof; or
(vvi) if a final judgment decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholdersstockholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval if applicable;
(iii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or;
(iiiiv) on account of acts or omissions that the Indemnitee believes to be contrary to the best interests of the Company or its stockholders or that involve the absence of good faith on the part of the Indemnitee;
(v) with respect to any transaction from which the Indemnitee derived an improper personal benefit;
(vi) on account of acts or omissions that show a reckless disregard for the Indemnitee’s duty to the Company or its stockholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing such duties, of a risk of serious injury to the Company or its stockholders; or
(vii) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the Indemnitee’s duty to the Company or its stockholders.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 2 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) as amended, or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(e) provided there has been no Change of Control, on account of or arising in response to any Proceeding (other than a Proceeding referred to the extent that the in Section 13(b) hereof) initiated by Indemnitee or any of Indemnitee’s affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee’s affiliates is a plaintiff, a counter-complainant or a cross-complainant therein complainant), unless (other than an action pursuant i) such indemnity is expressly required to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or be made by applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceedinglaw; (ii) unless such Proceeding was authorized in the specific case by action of the Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of Indemnitee’s entitlement to indemnification was not made in a timely manner;
(f) on account of Indemnitee’s conduct which is the subject of any Proceeding brought by Corporation and approved by a majority of the Board which alleges willful misappropriation of Directorscorporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders; or
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) On account of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sxxxxxxx-Xxxxx Act of 2002 (“Sxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sxxxxxxx-Xxxxx Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a Proceeding to recover such compensation or profits prior to a Change the final adjudication of Control, that Proceeding;
(c) on account of any Proceeding Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(d) on account of Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee’s duty of loyalty to the extent that Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(e) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee is a plaintiffhas no obligation to reduce, a counter-complainant offset, allocate, pursue or a cross-complainant therein apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company’s satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than an action pursuant the Company;
(f) if indemnification is not lawful, as established by the Company by a final judgment on such issue not subject to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsappeal; or
(vg) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company’s Board of Directors (“Board”), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof,
v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & 0 Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Samples: Indemnification Agreement (Restoration Hardware Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section ----------------------------------- 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 I hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
e. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) prior to a Change of Control, hereof;
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 or 3 hereof shall be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee Agent solely for an accounting of profits made from the purchase or sale by the Indemnitee Agent of securities of the Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law; provided that with respect to a claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b), Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Agent ultimately establishes in any Proceeding that no recovery of such profits from Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) prior to a Change of Control, on account of any Proceeding to the extent Agent’s conduct that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised established by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a Court having jurisdiction final judgment as constituting a breach of Agent’s duty of loyalty to the Company or resulting in the matter shall determine that any personal profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised Agent are aware that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(f) in connection with any Proceeding (or part thereof) initiated by Agent, or any Proceeding by Agent against the Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the Board, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the DGCL or any transaction from which other applicable law, (iv) the Indemnitee derived an improper personal benefitProceeding is initiated pursuant to Section 9 hereof, and (v) the Proceeding initiated by Agent is a cross-claim or counter-claim.
Appears in 1 contract
Samples: Indemnification Agreement (Aeolus Pharmaceuticals, Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim or proceeding against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as heretofore or hereafter amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law, provided, however, if and when Indemnitee ultimately establishes in any such proceeding that no recovery of profits from Indemnitee is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 4(a), indemnification pursuant to this Agreement shall then be permitted;
(ivb) prior to a Change of Control, on account of any Proceeding to the extent Indemnitee’s conduct that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised established by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Indemnitee’s conduct that is established by a Court having jurisdiction final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in the matter shall determine that any personal profit or advantage to which Indemnitee was not legally entitled;
(d) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(f) in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board of directors of the Company, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to any transaction from which the Indemnitee derived an improper personal benefitpowers vested in the Company under the DGCL, or (iv) the proceeding is initiated pursuant to Section 11 hereof.
Appears in 1 contract
Samples: Indemnification Agreement (Pdi Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Director's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlDirector's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Director or any of Director's affiliates against the Corporation or any officer, director or stockholder of the Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of the Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Vista Medical Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director/Officer is indemnified pursuant to Section 1 I hereof or pursuant to any Directors’ and Officers’ D & 0 Insurance purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee Director/Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Director/Officer for an accounting of profits made from the purchase or sale by the Indemnitee Director/Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law,
d. on account of Director's/Officer's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(ive. on account of Director's/Officer's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) prior to a Change of Control, hereof;
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) Director/Officer unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director/Officer have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and 3 is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Cohesion Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof of this Agreement shall be paid by the Company for any of to the followingextent that:
(ia) payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claims of Indemnitee under such insurance policy or policies to the extent of the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the amount Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained is paid by the Company;
(iib) in respect Indemnitee is indemnified by the Company otherwise than pursuant to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawthis Agreement;
(iiic) on account of any Proceeding in which final judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of NRS § 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or other similar provisions of any federal, state or local statutory law;
(ive) prior to a Change of Control, on account of any Proceeding Indemnitee’s conduct giving rise to the extent claim for indemnification is finally adjudged by a court of competent jurisdiction to have been a breach of fiduciary duty that the Indemnitee is a plaintiffinvolved intentional misconduct, a counter-complainant fraud or a cross-complainant therein knowing violation of the law; and/or
(other than an action pursuant to Section 8 f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other Proceeding to enforce this Agreement proceeding which is initiated or maintained by or on behalf of Indemnitee, or any suit or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding by Indemnitee in any Proceedingagainst the Company or its directors, officers, employees or other agents, unless (i) unless such Proceeding indemnification is expressly required by Nevada law; (ii) the suit or other proceeding was expressly authorized in the specific case by action an official act of the Board of Directors; or
Directors of the Company or (viii) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Nevada law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or reimbursed pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 1934, as amended, and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Director's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlDirector's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Director or any of Director's affiliates against Corporation or any officer, director or stockholder of Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Collateral Therapeutics Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the Company;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee’s conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee’s conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. To the extent that any of the matters set forth in subsections (a) No through (l) of this Section 3 are successfully established by the Company as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 2 hereof shall will be paid payable by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivb) prior to a Change of Control, on account of any Proceeding Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
(c) on account of Indemnitee's conduct that he or she believed to be contrary to the extent best interests of the Company or its shareholders or that involved the Indemnitee is a plaintiff, a counter-complainant absence of good faith on the part of Indemnitee;
(d) on account of Indemnitee's conduct that constituted intentional misconduct or a cross-complainant therein knowing and culpable violation of law;
(other than an action pursuant e) on account of Indemnitee's conduct that showed a reckless disregard for Indemnitee's duty to Section 8 the Company or other Proceeding to enforce this Agreement its shareholders in circumstances in which Indemnitee was aware, or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized should have been aware, in the specific case by action ordinary course of performing his or her duties, of a risk of serious injury to the Company or its shareholders;
(f) on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of the Board of Directors; orIndemnitee's duty to the Company or its shareholders;
(vg) on account of Indemnitee's conduct which constituted a violation of the Indemnitee's duties under Sections 310 or 316 of the Code;
(h) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(i) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that considers indemnification for liabilities arising under the federal securities laws is to be against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
(bj) In addition in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to those limitations set forth above be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the Company, in paragraph its sole discretion, pursuant to the powers vested in the Company under the Code, or (aiv) of this Section 3, no indemnity the proceeding is initiated pursuant to Section 2 hereof in an 9 hereof;
(k) with respect to any action by or in the right of the Company shall be paid by the Company for any of the followingCompany:
(i) in respect of any claim, issue or matter as to which the if Indemnitee shall have been is adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s 's duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses expenses, and then only to the extent that the court shall determine;
(ii) on account for expenses incurred in defending a pending action which is settled or otherwise disposed of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of lawwithout court approval; or
(iii) for amounts paid in settling or otherwise disposing of a pending action without court approval; and
(l) to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Company prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any transaction from which condition expressly imposed by a court in approving a settlement, unless Indemnitee has been successful on the merits or unless the indemnification has been approved by the shareholders of the Company in accordance with Section 153 of the Code (with the shares of the Indemnitee derived an improper personal benefitnot being entitled to vote thereon).
Appears in 1 contract
Samples: Indemnification Agreement (Landa Management Systems Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Controlin connection with any action, on account of claim or proceeding (or part thereof) initiated by Indemnitee, or any Proceeding to action, claim or proceeding by Indemnitee against the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein Corporation (other than an action pursuant to as permitted by Section 8 8) or its directors, officers, employees or other Proceeding agents, unless (i) such indemnification is expressly required to enforce this Agreement or other indemnification rights under be made by law, (ii) the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding proceeding was authorized in the specific case by action of the Board of Directors, or (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under Section 145;
(v) on account of Director's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vvi) if a final judgment by a Court judicial decision having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee’s duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing an Agent’s duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee’s duty to the Corporation or its shareholders;
(v) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iivi) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiivii) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee’s conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee’s conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (A) such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or and (B) any settlement pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment without right of appeal, or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of Officer's acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, law;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) Officer unless such Proceeding proceeding was authorized in by the specific case by action uninterested directors of the Board of DirectorsCorporation; or
(vvi) if a final judgment decision without right of appeal by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Officer believed or believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Officer;
(ii) with respect to any transaction from which Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duties to the corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing a Officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duties to the Corporation or its shareholders;
(v) to the extent prohibited by Section 144 of the Delaware general Corporation Law, entitled "Interested Directors; Quorum;"
(vi) in respect of any claim, issue or matter as to which the Indemnitee Officer shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s duty Officer's duties to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Officer is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the such court shall determine;
(iivii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; orand
(iiiviii) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant a Proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceedinghereof) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) of amounts paid in settling or otherwise disposing of a pending action without court approval;
(iii) of expenses incurred in defending a pending action that is settled or otherwise disposed of without court approval;
(iv) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or;
(iiiv) on account of acts or omissions that the Indemnitee believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the Indemnitee;
(vi) with respect to any transaction from which the Indemnitee derived an improper personal benefit;
(vii) on account of acts or omissions that show a reckless disregard for the Indemnitee’s duty to the Company or its shareholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing such duties, of a risk of serious injury to the Company or its shareholders; or
(viii) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the Indemnitee’s duty to the Company or its shareholders.
Appears in 1 contract
Samples: Indemnification Agreement (Connect Biopharma Holdings LTD)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 1 and 2 hereof of this Agreement shall be paid by the Company for any of to the followingextent that:
(ia) payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claims of Indemnitee under such insurance policy or policies to the extent of the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the amount Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained is paid by the Company;
(iib) in respect Indemnitee is indemnified by the Company otherwise than pursuant to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawthis Agreement;
(iiic) on account of any Proceeding in which final judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes Section 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange "Act”) "), or other similar provisions of any federal, state or local statutory law;
(ive) prior to a Change of Control, on account of any Proceeding Indemnitee's conduct giving rise to the extent that the Indemnitee claim for indemnification is finally adjudged by a plaintiffcourt of competent jurisdiction to have been a breach of fiduciary duty which involved intentional misconduct, a counter-complainant fraud or a cross-complainant therein knowing violation of the law; and/or
(other than an action pursuant to Section 8 f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other Proceeding to enforce this Agreement proceeding which is initiated or maintained by or on behalf of Indemnitee, or any suit or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding by Indemnitee in any Proceedingagainst the Company or its directors, officers, employees or other agents, unless (i) unless such Proceeding indemnification is expressly required by Nevada law; (ii) the suit or other proceeding was expressly authorized in the specific case by action an official act of the Board of Directors; or
Directors of the Company or (viii) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Nevada law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Xenonics Holdings, Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 2 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) as amended, or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee’s conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(e) provided there has been no Change of Control, on account of or arising in response to any Proceeding (other than a Proceeding referred to the extent that the in Section 12 hereof) initiated by Indemnitee or any of Indemnitee’s affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee ‘s affiliates is a plaintiff, a counter-complainant or a cross-complainant therein complainant), unless (other than an action pursuant i) such indemnity is expressly required to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or be made by applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceedinglaw; (ii) unless such Proceeding was authorized in the specific case by action of the Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of Indemnitee’s entitlement to indemnification was not made in a timely manner;
(f) on account of Indemnitee’s conduct which is the subject of any Proceeding brought by Corporation and approved by a majority of the Board which alleges willful misappropriation of Directorscorporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders; or
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 1 and 2 hereof of this Agreement shall be paid by the Company for any of the following:
(i) except to the extent that:
3.1 Payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the aggregate amount of losses payment to be indemnified thereunder exceeds Indemnitee under such insurance policy or policies. Notwithstanding the sum availability of such losses for which insurance policy or policies, Indemnitee also may claim indemnification from the Indemnitee has actually received payment Company pursuant to Section 1 hereof this Agreement by assigning to the Company in writing any claims of Indemnitee under such insurance policy or pursuant policies to any Directors’ and Officers’ Insurance purchased and maintained the extent of the amount Indemnitee is paid by the Company;
(ii) in respect 3.2 Indemnitee is indemnified by the Company otherwise than pursuant to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawthis Agreement;
(iii) on account of any Proceeding in which final 3.3 Final judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes § 78.300, as amended;
3.4 Final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or other similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding 3.5 Indemnitee’s conduct giving rise to the extent that the Indemnitee claim for indemnification is finally adjudged by a plaintiffcourt of competent jurisdiction to have been a breach of fiduciary duty which involved intentional misconduct, a counter-complainant fraud or a cross-complainant therein (other than an action pursuant to Section 8 knowing violation of the law; and/or
3.6 Except as otherwise provided in this Agreement, in connection with all or any part of a suit or other Proceeding to enforce this Agreement proceeding which is initiated or maintained by or on behalf of Indemnitee, or any suit or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding by Indemnitee in any Proceedingagainst the Company or its directors, officers, employees or other agents, unless (a) unless such Proceeding indemnification is expressly required by Nevada law; (b) the suit or other proceeding was expressly authorized in the specific case by action an official act of the Board of Directors; or
Directors of the Company or (vc) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Nevada law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. To the extent that any of the matters set forth in subsections (a) No through (l) of this Section 3 are successfully established by the Corporation as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 2 hereof shall will be paid payable by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) a. on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, b. on account of any Proceeding Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
c. on account of Indemnitee's conduct that he believed to be contrary to the extent best interests of the Corporation or its shareholders or that involved the Indemnitee is a plaintiff, a counter-complainant absence of good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted intentional misconduct or a cross-complainant therein (other than an action pursuant knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a reckless disregard for the Indemnitee's duty to Section 8 the Corporation or other Proceeding to enforce this Agreement its shareholders in circumstances in which Indemnitee was aware, or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized should have been aware, in the specific case by action ordinary course of performing his duties, of a risk of serious injury to the Corporation or its shareholders;
f. on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of the Board Indemnitee's duty to the Corporation or its shareholders;
g. on account of Directors; orIndemnitee's conduct which constituted a violation of the Indemnitee's duties under Sections 310 or 316 of the Code;
(v) h. for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
i. if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
j. in connection with any proceeding (bor part thereof) In addition initiated by Indemnitee, or any proceeding by Indemnitee against the Corporation or its directors, executive officers, officers, employees or other agents, unless (i) such indemnification is expressly required to those limitations set forth above be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in paragraph its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (aiv) of this Section 3, no indemnity the proceeding is initiated pursuant to Section 2 hereof in an 9 hereof;
k. with respect to any action by or in the right of the Company shall be paid by the Company for any of the followingCorporation:
(i) in respect of any claim, issue or matter as to which i. if the Indemnitee shall have been is adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses expenses, and then only to the extent that the court shall determine;
ii. for expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a pending action without court approval; and
l. to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Corporation prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee has been successful on account the merits or unless the indemnification has been approved by the shareholders of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation Corporation in accordance with Section 153 of law; or
the Code (iii) with respect to any transaction from which the shares of the Indemnitee derived an improper personal benefitnot being entitled to vote thereon).
Appears in 1 contract
Samples: Indemnification Agreement (Silicon Storage Technology Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “"Exchange Act”") or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if a final judgment decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission (the "SEC") believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
(vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D&O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Samples: Indemnification Agreement (Computer Access Technology Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be an Indemnitee is indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the an Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the an Indemnitee for an accounting of profits made from the purchase or sale by the such Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) 1934, as amended, or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of an Indemnitee’s acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, law;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than a proceeding referred to in Section 8(b) hereof) initiated by an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or
(vvi) if a final judgment by a Court having jurisdiction on account of an Indemnitee’s conduct which is the subject of an action, suit or proceeding described in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Section 7(c)(ii) hereof.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) with respect to any transaction from which an Indemnitee derived an improper personal benefit;
(ii) on account of acts or omissions that show a reckless disregard for an Indemnitee’s duty to the Corporation or its stockholders in circumstances in which such Indemnitee was aware, or should have been aware, in the ordinary course of performing a director’s or an officer’s duties, of a risk of serious injury to the Corporation or its stockholders;
(iii) to indemnify any Indemnitee for any claims excluded under Section 145 of the Code if (i) he or she did not act in good faith or in a manner reasonably believed by such Indemnitee to be in or not opposed to the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, such Indemnitee had reasonable cause to believe his or her conduct was unlawful, or (iii) such Indemnitee shall have been adjudged to be liable to the Corporation unless and only to the extent the court in which such action was brought shall permit indemnification as provided in Section 145(b) of the Delaware General Corporation Law; or
(iv) in respect of any claim, issue or matter as to which the an Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the such Indemnitee’s duty to the Company Corporation and its shareholdersstockholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the such Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Upek Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Officer's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlOfficer's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Officer or any of Officer's affiliates against the Corporation or any officer, director or stockholder of the Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of the Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Officer is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Officer have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Vista Medical Technologies Inc)
Limitations on Additional Indemnity. (a) No indemnity or contribution pursuant to Section 2 5 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company pursuant to Corporation within the provisions meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) 1934, as amended, or similar provisions of state statutory law or common law;
(b) on account of any federalclaims for which payment is actually made to the Indemnitee under a valid and collectible corporate insurance policy or under a valid and enforceable indemnity clause, state by‑law or local statutory agreement, except in respect of any excess beyond payment under such insurance, clause, by‑law or agreement;
(c) if indemnification is not lawful, as established in a final adjudication not subject to further appeal;
(d) in connection with any Proceeding (or part thereof) initiated by the Indemnitee, or any Proceeding by the Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the Proceeding is initiated pursuant to Section 10(d) hereof;
(e) on account of the Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, as established in a final adjudication not subject to further appeal;
(f) on account of the Indemnitee's acts or omissions that the Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of the Indemnitee, as established in a final adjudication not subject to further appeal;
(g) in respect of any action brought by or in the right of the Corporation for breach of the Indemnitee's duties to the Corporation and its shareholders, as established in a final adjudication not subject to further appeal:
(i) on account of any transaction from which the Indemnitee derived an improper personal benefit;
(ii) on account of the Indemnitee's acts or omissions that show a reckless disregard for the Indemnitee's duty to the Corporation or its shareholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing the Indemnitee's duties, of a risk of serious injury to the Corporation or its shareholders;
(iii) on account of the Indemnitee's acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the Indemnitee's duty to the Corporation or its shareholders;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that liability of the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to under Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action 310 of the Board of Directors; orCode;
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and on account of any liability of the Indemnitee have been advised that under Section 316 of the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Code;
(bh) In addition to those limitations set forth above in paragraph (a) respect of this Section 3, no indemnity pursuant to Section 2 hereof in an any action by or in the right of the Company shall be paid by the Company for any of the followingCorporation to procure a judgment in its favor, as established in a final adjudication not subject to further appeal:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of amounts paid in settling or otherwise disposing of a pending action without court approval;
(iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval;
(i) except as provided in subdivision (d) or paragraph (4) of subdivision (e) of Section 317 of the Indemnitee’s acts or omissions Code, in any circumstance where it appears that involve intentional misconduct or it would be inconsistent with any condition expressly imposed by a knowing and culpable violation of lawcourt in approving a settlement; or
(iiij) with respect On account of the operation of a “clawback” policy adopted by the Board of Directors requiring the Corporation to any transaction from which the Indemnitee derived recover amounts paid to an improper personal benefitexecutive following a restatement of its financial statements.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) ("Section 16(b)") of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “"Exchange Act”) "), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) On account of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sxxxxxxx-Xxxxx Act of 2002 ("Sxxxxxxx-Xxxxx
(c) Act"), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sxxxxxxx-Xxxxx Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a Proceeding to recover such compensation or profits prior to a Change the final adjudication of Control, that Proceeding;
(d) on account of any Proceeding Indemnitee's conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(e) on account of Indemnitee's conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee's duty of loyalty to the extent that Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(f) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee is a plaintiffhas no obligation to reduce, a counter-complainant offset, allocate, pursue or a cross-complainant therein apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company's satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than an action pursuant the Company.
(g) if indemnification is not lawful, as established by the Company by a final judgment on such issue not subject to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsappeal; or
(vh) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company's Board of Directors ("Board"), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) On account of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a Proceeding to recover such compensation or profits prior to a Change the final adjudication of Control, that Proceeding;
(c) on account of any Proceeding Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(d) on account of Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee's duty of loyalty to the extent that Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(e) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee is a plaintiffhas no obligation to reduce, a counter-complainant offset, allocate, pursue or a cross-complainant therein apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company's satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than an action pursuant the Company;
(f) if indemnification is not lawful, as established by the Company by a final judgment on such issue not subject to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsappeal; or
(vg) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company’s Board of Directors (“Board”), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment judgement is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent Officer's acts or omissions that the Indemnitee is a plaintiff, a counter-complainant involve intentional misconduct or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action knowing and culpable violation of the Board of Directors; orlaws;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful lawful; or
(andvii) on account of any action, suit or proceeding commenced by the Officer against the Corporation or against any officer, director or shareholder of the Corporation unless authorized in this respect, both the Company and specific case by action of the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Board of Directors;
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Officer believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Officer;
(ii) with respect to any transaction from which Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duty to the Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duty to the Corporation or its shareholders;
(v) to the extent prohibited by section 310 of the California Corporations Code, "Contracts In Which Officer Has Material Financial Interest;"
(vii) in respect of to any claim, issue or matter as to which the Indemnitee Officer shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s Officer's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Officer is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law; on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iii) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(v) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
vi) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 2(b) hereof shall be paid by the Company for any of the followingCorporation:
(iA) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in with respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiB) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Indenmnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivC) prior to a Change of Control, on account of Indemnitee’s conduct which is the subject of an action suit or proceeding brought by or in the right of the Corporation and approved by the majority of the Board which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of material confidential information in violation of Indemnitee’s fiduciary or contractual obligations to Corporation or any Proceeding other willful and deliberate breach in bad faith of Indemnitee’s duty to Corporation or its stockholders;
(D) if applicable law so provides, if Indemnitee shall have been finally adjudged to be liable to the Corporation unless and to the extent that the Indemnitee Court of Chancery of the State of Delaware shall determine that such indemnification may be made;
(E) on account of Indemnitee’s conduct which is finally adjudged in a plaintifffinal decision by a court having jurisdiction in the matter to have been knowingly fraudulent or deliberately dishonest, a counter-complainant or a cross-complainant therein to constitute willful misconduct;
(F) on account of any action, claim or proceeding (other than an action pursuant a proceeding referred to Section 8 in Sections 2(b), (2)(g) or other Proceeding to enforce this Agreement or other indemnification rights under 11 hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) against the Corporation unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vG) if a final judgment decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
(bH) In addition subject to those limitations set forth above Section 2(c), if the Reviewing Party shall have determined (in paragraph a written opinion, in any case in which the Independent Legal Counsel is involved) that Indemnitee would not be permitted to be indemnified with respect to a specific matter under applicable law; provided that any such finding shall not prejudice Indemnitee’s right to indemnification with respect at any other matter; and
(aI) unless Indemnitee acknowledges and agrees that the obligation of this Section 3, no indemnity the Corporation to make an advance payment of Expenses to Indemnitee pursuant to Section 2 hereof in 4 (an action by or in the right of the Company “Expense Advance") shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable subject to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company condition that, if, when and its shareholders, unless and only to the extent that the court in which such Proceeding is Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, this agreement or was pending shall determine upon application that, in view of all the circumstances of the caseCorporation’s Bylaws, the Indemnitee is fairly and reasonably Corporation shall be entitled to indemnity be reimbursed by Indemnitee (who hereby undertakes and agrees to reimburse the Corporation) for expenses all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, this agreement or the Corporation’s Bylaws, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and then only Indemnitee shall not be required to reimburse the extent that the court shall determine;
Corporation for any Expense Advance until a final judicial determination is made with respect thereto (ii) on account as to which all rights of the appeal therefrom have been exhausted or lapsed). Indemnitee’s acts or omissions that involve intentional misconduct or a knowing obligation to reimburse the Corporation for any Expense Advance shall be unsecured and culpable violation of law; or
(iii) no interest shall be charged by the Corporation in connection with respect any such amounts determined to any transaction from which the Indemnitee derived an improper personal benefitbe owed by Indemnitee.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of Indemnitee's acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, law;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(vi) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vvii) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence in good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee's duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing a director's or an officer's duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee's duty to the Corporation or its shareholders;
(v) to the extent prohibited by the Code, including but not limited to Section 310 of the California Corporations Code, "Contracts In Which Director Has Material Financial Interest" and Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vi) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iivii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiviii) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) a. No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ director and Officers’ Insurance officer liability insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(v) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(vi) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vvii) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no b. No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by Corporation if the Company action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) any solicitation of proxies by Indemnitee, or by a group of which Indemnitee was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors; or
(ii) on account any activities by Indemnitee that constitute a breach of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing default under any agreement between Indemnitee and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCorporation.
Appears in 1 contract
Samples: Indemnification Agreement (Silicon Laboratories Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Director’s conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest;
(e) on account of ControlDirector’s conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Director or any of Director’s affiliates against Corporation or any officer, director or shareholder of Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) . In addition to those limitations Limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company Corporation for any of the followingfollowing breaches of duty to Corporation and its shareholders:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or;
(ii) acts or omissions that Director believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Director;
(iii) with respect to any transaction from which the Indemnitee Director derived an improper personal benefit;
(iv) acts or omissions that show a reckless disregard for Director’s duty to Corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to Corporation or its shareholders;
(v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director’s duty to Corporation or its shareholders;
(vi) acts or omissions prohibited by Section 310 of the California Corporations Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors”;
(vii) acts or omissions prohibited by Section 316 of the California Corporations Code, “Directors’ Liability for Distributions, Loans and Guarantees”.
Appears in 1 contract
Samples: Indemnification Agreement (Cardiodynamics International Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 2 hereof or reimbursed pursuant to any Directors’ and Officers’ D & 0 Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior on account of Director's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law if such acts or omission have been established by a judgment or other final adjudication adverse to a Director (an "Adverse Judgment");
(v) provided there has been no Change of Control, on account of or arising in response to any Proceeding action, suit or proceeding (other than an action, suit or proceeding referred to in Section 14(b) hereof) initiated by Director or any of Director's affiliates against Corporation or against any officer, director or shareholder of Corporation unless such proceeding was authorized by the Board of Directors of Corporation;
(vi) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; or
(vii) on account of any action, suit or proceeding to the extent that the Indemnitee Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding4(a)(v) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudicationhereof).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 34, no indemnity pursuant to Section 2 3 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Director believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Director, if so established by an Adverse Judgment;
(ii) with respect to any transaction from which Director derived an improper personal benefit, if so established by an Adverse Judgment;
(iii) on account of acts or omissions that show a reckless disregard for Director's duty to Corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to Corporation or its shareholders, if so established by an Adverse Judgment;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director's duty to Corporation or its shareholders, if so established by an Adverse Judgment;
(v) on account of proceedings under Section 310 of California Law (contracts in which director has material financial interest), if so established by an Adverse Judgment;
(vi) on account of proceedings under Section 316 of California Law (corporation actions subjecting directors to joint and several liability), if so established by an Adverse Judgment;
(vii) in respect of any claim, issue or matter as to which the Indemnitee Director shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s Director's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Director is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; orand
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Samples: Indemnification Agreement (Dura Pharmaceuticals Inc/Ca)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 or 3 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee Covered Agent solely for an accounting of profits made from the purchase or sale by the Indemnitee Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the as defined below) (“Exchange ActSection 16(b)”) ), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Covered Agent solely for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b), Covered Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Covered Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Covered Agent for an accounting of profits made from the purchase or sale by Covered Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Covered Agent ultimately establishes in any Proceeding that no recovery of such profits from Covered Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) prior for which payment is actually made to Covered Agent under a Change of Controlvalid and collectible insurance policy or under a valid and enforceable indemnity clause, on account bylaw or agreement, except in respect of any Proceeding to the extent that the Indemnitee is a plaintiffexcess beyond payment under such insurance, a counter-complainant clause, bylaw or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; oragreement;
(vc) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of applicable law; or
(d) in connection with any Proceeding (or part thereof) initiated by Covered Agent, or any Proceeding by Covered Agent against the Company or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the Board, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the DGCL or any transaction from which other applicable law, (iv) the Indemnitee derived an improper personal benefitProceeding is initiated pursuant to Section 9 hereof, or (v) the Proceeding initiated by Covered Agent is a cross-claim or counter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Officer’s conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest;
(e) on account of ControlOfficer’s conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Officer or any of Officer’s affiliates against Corporation or any officer, director or shareholder of Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Officer is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Officer have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) . In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company Corporation for any of the followingfollowing breaches of duty to Corporation and its shareholders:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or;
(ii) acts or omissions that Officer believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Officer;
(iii) with respect to any transaction from which the Indemnitee Officer derived an improper personal benefit;
(iv) acts or omissions that show a reckless disregard for Officer’s duty to Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing his duties, of a risk of serious injury to Corporation or its shareholders;
(v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer’s duty to Corporation or its shareholders;
(vi) acts or omissions prohibited by Section 310 of the California Corporations Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors”;
(vii) acts or omissions prohibited by Section 316 of the California Corporations Code, “Directors’ Liability for Distributions, Loans and Guarantees”.
Appears in 1 contract
Samples: Indemnification Agreement (Cardiodynamics International Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant The Company shall not be obligated to Section 2 hereof shall be paid by the Company for any of the followingindemnify Indemnitee:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) a. on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or any similar provisions provision of any federal, state or local statutory law;
b. on account of Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
c. on account of Indemnitee's conduct that he believed to be contrary to the best interests of the Company or its shareholders, or that was not done in good faith;
d. on account of Indemnitee's conduct that constituted a knowing violation of law;
e. on account of Indemnitee's conduct which constituted a violation of the Indemnitee's duties under Sections 310 or 316 of the Code;
f. for which payment is due Indemnitee under an insurance policy;
g. if indemnification is not lawful;
h. in connection with any proceeding (or part thereof) initiated by Indemnitee, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Code, or (iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee proceeding is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action initiated pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) 9 of this Section 3, no indemnity pursuant Indemnity Agreement;
i. with respect to Section 2 hereof in an any action by or in the right of the Company shall be paid by the Company for any of the followingCompany:
(i) in respect of any claim, issue or matter as to which i. if the Indemnitee shall have been is adjudged in a final judgment to be liable to the Company because of Indemnitee's conduct;
ii. for willful misconduct expenses incurred in the performance defending a pending action which is settled or otherwise disposed of the Indemnitee’s duty without court approval; or
iii. to the Company and its shareholdersextent, unless and only to the extent extent, that indemnification with respect to such action (i) would be inconsistent with the court in which such Proceeding is Articles or was pending shall determine upon application thatBylaws, in view of all the circumstances or a resolution of the case, shareholders or agreement of the Indemnitee is fairly Company prohibiting or otherwise limiting such indemnification and reasonably entitled to indemnity for expenses and then only to in effect at the extent that time of the court shall determine;
accrual of the action or (ii) on account would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless the indemnification has been approved by the shareholders of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation Company in accordance with Section 153 of law; or
the Code (iii) with respect to any transaction from which the shares of the Indemnitee derived an improper personal benefitnot being entitled to vote thereon).
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is validly indemnified pursuant to Section 1 hereof or pursuant to any Directors’ Directors and Officers’ Officers Liability Insurance ("D & O Insurance") purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct or a breach of Indemnitee's duty of loyalty to the Corporation, or to have resulted in Indemnitee personally having gained in fact a financial profit or other advantage to which Indemnitee was not legally entitled;
e. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(b)(ii) prior to a Change of Control, hereof;
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 9(b) hereof) initiated by the Indemnitee against the Corporation or its directors, officers, employees or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) agents unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of DirectorsDirectors of the Corporation or the proceeding is required by law; or
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No a. Without limiting the indemnification provided for under Section 1 hereof, the Corporation shall not be required to pay any indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followinghereof:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment (a) is indemnified pursuant to Section 1 hereof or (b) has been reimbursed pursuant to any Directors’ Directors and Officers’ Officers Liability Insurance (“D & O Insurance”) purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication (from which there is no right of appeal) that such remuneration was in violation of law;
(iii) on account of any Proceeding in Indemnitee’s acts or omissions if it shall be determined by a final adjudication (from which final judgment there is rendered against the Indemnitee for an accounting no right of profits made from the purchase appeal) that such acts or sale by the Indemnitee omissions involve intentional misconduct or a knowing and culpable violation of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised hereof) initiated by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of Indemnitee’s conduct if it shall be determined by a final adjudication (from which there is no right of appeal) that such conduct constituted the willful misappropriation of corporate assets by Indemnitee, disclosure of confidential information in willful and deliberate breach in bad faith of Indemnitee’s fiduciary or contractual obligations to the Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to the Corporation or its shareholders; or
(vvi) if a final judgment adjudication (from which there is no right of appeal) by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable unenforceable, and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) b. In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee’s duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing such Indemnitee’s duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee’s duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the Code, “Transactions Between Corporations and Directors or Corporations Having Interrelated Directors;”
(vi) to the extent prohibited by Section 316 of the Code, “Directors’ Liability for Distributions, Loans and Guarantees ” (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 I hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law,
d. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(ive. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) prior to a Change of Control, hereof; 2 3
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any Directors' Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 2 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) as amended, or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct if such conduct has been established by a judgment or other final adjudication adverse to Indemnitee;
(e) provided there has been no Change of Control, on account of or arising in response to any Proceeding (other than a Proceeding referred to the extent that the in Section 13(b) hereof) initiated by Indemnitee or any of Indemnitee's affiliates against Corporation or any officer, director or stockholder of Corporation (or in which Indemnitee or any of Indemnitee's affiliates is a plaintiff, a counter-complainant or a cross-complainant therein complainant), unless (other than an action pursuant i) such indemnity is expressly required to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or be made by applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceedinglaw; (ii) unless such Proceeding was authorized in the specific case by action of the Board; or (iii) such indemnity is required to be made pursuant to Section 5 hereof because the determination of Indemnitee's entitlement to indemnification was not made in a timely manner;
(f) on account of Indemnitee's conduct which is the subject of any Proceeding brought by Corporation and approved by a majority of the Board which alleges willful misappropriation of Directorscorporate assets by Indemnitee, disclosure of confidential information in violation of Indemnitee's fiduciary or contractual obligations to Corporation, or any other willful and deliberate breach in bad faith of Indemnitee's duty to Corporation or its stockholders; or
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)lawful.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to ----------------------------------- Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawlaw ;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 I hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
e. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) prior to a Change of Control, hereof;
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnity Agreement (Perficient Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof or 3 of this Agreement shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee Agent solely for an accounting of profits made from the purchase or sale by the Indemnitee Agent of securities of the Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law; provided that, with respect to a claim against Agent solely for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b), Agent shall be entitled to the advancement of legal expenses unless the Company reasonably determines that Agent clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws shall not be prohibited if Agent ultimately establishes in any Proceeding that no recovery of such profits from Agent is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) prior for any reimbursement of the Company by Agent of any bonus or other incentive-based or equity-based compensation or of any profits realized by Agent from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by Agent of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Agent is held liable therefor (including pursuant to any settlement arrangements);
(c) on account of Agent’s conduct that is established by a Change final judgment of Controla court of competent jurisdiction as being in bad faith, knowingly fraudulent or deliberately dishonest or that constituted willful misconduct (but only to the extent of such specific determination);
(d) with respect to criminal proceedings, on account of any Proceeding Agent having reasonable cause to believe that Agent’s conduct was unlawful, as established by a final judgment of a court of competent jurisdiction;
(e) on account of Agent’s conduct that is established by a final judgment of a court of competent jurisdiction as constituting a breach of Agent’s duty of loyalty to the extent Company or resulting in any personal profit or advantage to which Agent was not legally entitled;
(f) except as provided in Section 17 of this Agreement, for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement; provided that the Indemnitee foregoing shall not affect the rights of Agent or the Additional Indemnitors set forth in Section 17 of this Agreement;
(g) if indemnification is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsnot lawful; or
(vh) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Agent, or any Proceeding by Agent against the matter shall determine that Company or its directors, officers, employees or other agents, unless (i) the Proceeding was authorized by the Board, or (ii) such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)DGCL or any other applicable law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Viking Therapeutics, Inc.)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting Director's acts or omissions that involve intentional misconduct or a knowing and culpable violation of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised 8(b) hereof) initiated by Indemnitee in any Proceeding) Director unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of Director's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Director believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Director;
(ii) with respect to any transaction from which Director derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Director's duty to the Corporation or its shareholders in circumstances in which Director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Director's duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the California Corporations Code, "Contracts In Which Director Has Material Financial Interest";
(vi) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which the Indemnitee Director shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s Director's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Director is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment judgement is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of Officer's acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, laws;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) Officer unless such Proceeding proceeding was authorized in by the specific case by action Directors of the Board of Directors; orCorporation;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful lawful; or
(andvii) on account of any action, suit or proceeding commenced by the Officer against the Corporation or against any officer, director or shareholder of the Corporation unless authorized in this respect, both the Company and specific case by action of the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Board of Directors;
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Officer believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Officer;
(ii) with respect to any transaction from which Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duty to the Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duty to the Corporation or its shareholders;
(v) to the extent prohibited by section 310 of the California Corporations Code, "Contracts In Which Officer Has Material Financial Interest;"
(vi) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Officers To Joint and Several Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of to any claim, issue or matter as to which the Indemnitee Officer shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s Officer's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Officer is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) ("Section 16(b)") of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “"Exchange Act”) "), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) On account of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley Xxx"), or the paymexx xx xxx Xxxxany of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), provided, Indemnitee is entitled to xxxxxxxxxxx xf Expenses related to, arising out of, or resulting from a Proceeding to recover such compensation or profits prior to a Change the final adjudication of Control, that Proceeding;
(c) on account of any Proceeding Indemnitee's conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(d) on account of Indemnitee's conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee's duty of loyalty to the extent that Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(e) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee is a plaintiffhas no obligation to reduce, a counter-complainant offset, allocate, pursue or a cross-complainant therein apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company's satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than an action pursuant the Company.
(f) if indemnification is not lawful, as established by the Company by a final judgment on such issue not subject to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsappeal; or
(vg) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company's Board of Directors ("Board"), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 1 and 2 hereof of this Agreement shall be paid by the Company for any of to the followingextent that:
(ia) payment therefor is actually made to Indemnitee under a valid and collectible insurance policy or policies, except with respect to any excess amount due to Indemnitee beyond the amount of payment to Indemnitee under such insurance policy or policies. Notwithstanding the availability of such insurance policy or policies, Indemnitee also may claim indemnification from the Company pursuant to this Agreement by assigning to the Company in writing any claims of Indemnitee under such insurance policy or policies to the extent of the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the amount Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained is paid by the Company;
(iib) in respect Indemnitee is indemnified by the Company otherwise than pursuant to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of lawthis Agreement;
(iiic) on account of any Proceeding in which final judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Subsection 2 of Nevada Revised Statutes ss. 78.300, as amended;
(d) final judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange "Act”) "), or other similar provisions of any federal, state or local statutory law;
(ive) prior to a Change of Control, on account of any Proceeding Indemnitee's conduct giving rise to the extent that the Indemnitee claim for indemnification is finally adjudged by a plaintiffcourt of competent jurisdiction to have been a breach of fiduciary duty which involved intentional misconduct, a counter-complainant fraud or a cross-complainant therein knowing violation of the law; and/or
(other than an action pursuant to Section 8 f) except as otherwise provided in this Agreement, in connection with all or any part of a suit or other Proceeding to enforce this Agreement proceeding which is initiated or maintained by or on behalf of Indemnitee, or any suit or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding by Indemnitee in any Proceedingagainst the Company or its directors, officers, employees or other agents, unless (i) unless such Proceeding indemnification is expressly required by Nevada law; (ii) the suit or other proceeding was expressly authorized in the specific case by action an official act of the Board of Directors; or
Directors of the Company or (viii) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprovided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication)Nevada law.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Evolution Petroleum Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(iia) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiib) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivc) prior to a Change of Control, on account of any Proceeding to the extent Indemnitee’s conduct that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised established by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(d) on account of Indemnitee’s conduct that is established by a Court having jurisdiction final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in the matter shall determine that any personal profit or advantage to which Indemnitee was not legally entitled;
(e) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under any valid and enforceable non-Company indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(f) if indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
(bg) In addition if the action, suit or proceeding with respect to those limitations set forth above in paragraph (a) of this Section 3, no which a claim for indemnity pursuant to Section 2 hereof in an action by hereunder is made arose from or in the right of the Company shall be paid by the Company for is based upon any of the following:
(i) any solicitation of proxies by Indemnitee, or by a group of which he or she was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors; or
(ii) on account any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of lawCompany; or
(h) in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or any Subsidiary or the directors, officers, employees or other agents of the Company or any Subsidiary, including, but not limited to, an action described under Section 8(c)(ii) herein, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to any transaction from which the Indemnitee derived an improper personal benefitpowers vested in the Company under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Appears in 1 contract
Limitations on Additional Indemnity. To the extent that any of the ----------------------------------- matters set forth in subsections (a) No through (l) of this Section 3 are successfully established by the Corporation as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 2 2(a) hereof shall will be paid payable by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) a. on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state state, or local statutory law;
(iv) prior to a Change of Control, b. on account of any Proceeding Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
c. on account of Indemnitee's conduct that he or she believed to be contrary to the extent best interests of the Corporation or its shareholders or that involved the Indemnitee is a plaintiff, a counter-complainant absence of good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted intentional misconduct or a cross-complainant therein (other than an action pursuant knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a reckless disregard for the Indemnitee's duty to Section 8 the Corporation or other Proceeding to enforce this Agreement its shareholders in circumstances in which Indemnitee was aware, or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized should have been aware, in the specific case by action ordinary course of performing his or her duties, of a risk of serious injury to the Corporation or its shareholders;
f. on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of the Board Indemnitee's duty to the Corporation or its shareholders;
g. on account of Directors; orIndemnitee's conduct which constituted a violation of the Indemnitee's duties under Section 310 or Section 316 of the Code;
(v) h. for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw, or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw, or agreement;
i. if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
j. in connection with any proceeding (bor part thereof) In addition initiated by Indemnitee, or any proceeding by Indemnitee against the Corporation or its directors, executive officers, officers, employees, or other agents, unless (i) such indemnification is expressly required to those limitations set forth above be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in paragraph its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (aiv) of this Section 3, no indemnity the proceeding is initiated pursuant to Section 2 hereof in an 9 hereof;
k. with respect to any action by or in the right of the Company shall be paid by the Company for any of the followingCorporation:
(i) in respect of any claim, issue or matter as to which i. if the Indemnitee shall have been is adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses expenses, and then only to the extent that the court shall determine;
ii. for expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a pending action without court approval; and
l. to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Corporation prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee has been successful on account the merits or unless the indemnification has been approved by the shareholders of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation corporation in accordance with Section 153 of law; or
the Code (iii) with respect to any transaction from which the shares of the Indemnitee derived an improper personal benefitnot being entitled to vote thereon).
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) a. except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) b. in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) c. on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law,
d. on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(ive. on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) prior to a Change of Control, hereof;
f. on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(v) g. if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) 1934, as amended, or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
(iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board board of Directors; ordirectors;
(vvi) if a final judgment decision by a Court court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
(vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D&O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No 'indemnity pursuant to ----------------------------------- Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7 (c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) (“Section 16(b)”) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”) ), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) prior to a Change of Control, on On account of any Proceeding to reimbursement of the extent that Company by the Indemnitee is a plaintiffof any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, a counter-complainant or a cross-complainant therein as required in each case under the Exchange Act (other than including any such reimbursements that arise from an action accounting restatement of the Company pursuant to Section 8 304 of the Sxxxxxxx-Xxxxx Act of 2002 (“Sxxxxxxx-Xxxxx Act”), or other the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sxxxxxxx-Xxxxx Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a Proceeding to enforce recover such compensation or profits prior to the final adjudication of that Proceeding;
(c) On account of Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(d) On account of Indemnitee’s conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(e) For which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee has no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company’s satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company;
(f) If indemnification rights under is not lawful, as established by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised Company by Indemnitee in any Proceeding) unless a final judgment on such Proceeding was authorized in the specific case by action of the Board of Directorsissue not subject to appeal; or
(vg) if a final judgment In connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company’s Board of Directors (“Board”), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in In respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on On account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iii) On account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct;
iv) prior to a Change On account of ControlIndemnitee's conduct which is the subject of an action, on suit or proceeding described in Section 6(c)(ii) hereof;
v) On account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if If a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
vii) Except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D&O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Samples: Indemnification Agreement (SCC Communications Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim or proceeding against the Indemnitee for an accounting of profits made from the purchase or sale (or sale or purchase) by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) , or similar provisions of any federal, state or local statutory law, provided, however, if and when Indemnitee ultimately establishes in any such proceeding that no recovery of profits from Indemnitee is permitted under Section 16(b) of the Exchange Act or such similar provision of any similar federal, state or local law, then, notwithstanding anything to the contrary provided in this Section 6(a), indemnification pursuant to this Agreement shall then be permitted;
(ivb) prior to a Change of Control, on account of Indemnitee’s conduct that is established by a final judicial decision from which there is no further right to appeal (hereinafter, a “Final Adjudication”) was committed in bad faith or was the result of active and deliberate dishonesty;
(c) on account of Indemnitee’s conduct that is established by a Final Adjudication resulting in the receipt of an improper personal benefit in the form of money, property or services;
(d) where Indemnitee’s conduct is the subject of a criminal proceeding in which it is established by a Final Adjudication that Indemnitee had reasonable cause to believe that the act or omission was unlawful;
(e) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any Proceeding excess beyond payment under such insurance, clause, bylaw or agreement;
(f) in connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or its directors, officers, employees or other Indemnitees, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the extent that powers vested in the Indemnitee Company under the MGCL, or (iv) the proceeding is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action initiated pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors11 hereof; or
(vg) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification where Indemnitee is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for or its stockholders by reason of willful misconduct misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the performance conduct of the such Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitoffice.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiiii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest or to constitute willful misconduct; iv) prior to a Change on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 6(c)(ii) hereof;
v) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 7(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; or;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); and
vii) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of (a) such losses for which the Indemnitee is indemnified pursuant to Section 1 hereof and (b) any additional amount paid to the Indemnitee pursuant to any D & O Insurance purchased and maintained by the Company.
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no No indemnity pursuant to Section 1 or 2 hereof in an action by or in the right of the Company shall be paid by the Company if the action, suit or proceeding with respect to which a claim for indemnity hereunder is made arose from or is based upon any of the following:
(i) Any solicitation of proxies by Indemnitee, or by a group of which he was or became a member consisting of two or more persons that had agreed (whether formally or informally and whether or not in respect writing) to act together for the purpose of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application thatsoliciting proxies, in view opposition to any solicitation of all proxies approved by the circumstances Board of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;Directors.
(ii) on account Any activities by Indemnitee that constitute a breach of or default under any agreement between Indemnitee and the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitCompany.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section Sections 2 or 3 hereof shall must be paid by the Company for any of the followingCompany:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on On account of any Proceeding in which final judgment is rendered claim against the Indemnitee solely for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) ("Section 16(b)") of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “"Exchange Act”) "), or similar provisions of any federal, state or local statutory law; provided, that with respect to a claim against Indemnitee solely for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local law, Indemnitee is entitled to the advancement of legal expenses unless the Company reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge profits to the Company pursuant to the terms thereof. Notwithstanding anything to the contrary stated or implied in this Section 4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) or similar provisions of any federal, state or local laws is not prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) or similar provisions of any federal, state or local laws;
(ivb) On account of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of
(c) the Company pursuant to Section 304 of the Sxxxxxxx-Xxxxx Act of 2002 ("Sxxxxxxx-Xxxxx Act"), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sxxxxxxx-Xxxxx Act), provided, Indemnitee is entitled to advancement of Expenses related to, arising out of, or resulting from a a Proceeding to recover such compensation or profits prior to a Change the final adjudication of Control, that Proceeding;
(d) on account of any Proceeding Indemnitee's conduct that is established by a final judgment, not subject to appeal, as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(e) on account of Indemnitee's conduct that is established by a final judgment, not subject to appeal, as constituting a breach of Indemnitee's duty of loyalty to the extent that Company or resulting in any personal profit or advantage to which Indemnitee was not legally entitled;
(f) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement and such payment fully compensates Indemnitee against all expenses. Notwithstanding anything to the contrary stated or implied in this Section 4(e), (i) Indemnitee is a plaintiffhas no obligation to reduce, a counter-complainant offset, allocate, pursue or a cross-complainant therein apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple persons possessing those obligations to Indemnitee prior to the Company's satisfaction and performance of its obligations under this Agreement; and (ii) the Company must perform fully its obligations under this Agreement regardless of whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than an action pursuant the Company.
(g) if indemnification is not lawful, as established by the Company by a final judgment on such issue not subject to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directorsappeal; or
(vh) if a final judgment in connection with any Proceeding (or part thereof) initiated by a Court having jurisdiction in Indemnitee, or any Proceeding by Indemnitee against the matter shall determine that Company or an Affiliate or the directors, officers, employees or other agents of the Company or an Affiliate, unless (i) such indemnification is not lawful expressly required to be made by law, (andii) the Proceeding was authorized by the Company's Board of Directors ("Board"), (iii) such indemnification is provided by the Company, in this respectits sole discretion, both pursuant to the powers vested in the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws DGCL or any other applicable law, (iv) the Proceeding is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity initiated pursuant to Section 2 hereof in an action 10 hereof, or (v) the Proceeding initiated by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts a cross-claim or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefitcounter-claim.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 3 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 2 hereof or reimbursed pursuant to any Directors’ and Officers’ D & 0 Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior on account of Officer's acts or omissions that involve intentional misconduct or a knowing and culpable violation of law if such acts or omission have been established by a judgment or other final adjudication adverse to a Officer (an "Adverse Judgment");
(v) provided there has been no Change of Control, on account of or arising in response to any Proceeding action, suit or proceeding (other than an action, suit or proceeding referred to in Section 14(b) hereof) initiated by Officer or any of Officer's affiliates against Corporation or against any officer, director or shareholder of Corporation unless such proceeding was authorized by the Board of Directors of Corporation;
(vi) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; or
(vii) on account of any action, suit or proceeding to the extent that the Indemnitee Officer is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding4(a)(v) unless such Proceeding was authorized in the specific case by action of the Board of Directors; or
(v) if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudicationhereof).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 34, no indemnity pursuant to Section 2 3 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Officer believes to be contrary to the best interests of Corporation or its shareholders or that involve the absence of good faith on the part of Officer, if so established by an Adverse Judgment;
(ii) with respect to any transaction from which Officer derived an improper personal benefit, if so established by an Adverse Judgment;
(iii) on account of acts or omissions that show a reckless disregard for Officer's duty to Corporation or its shareholders in circumstances in which Officer was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders, if so established by an Adverse Judgment;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Officer's duty to Corporation or its shareholders, if so established by an Adverse Judgment;
(v) in respect of any claim, issue or matter as to which the Indemnitee Officer shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s Officer's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee Officer is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iivi) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; orand
(iiivii) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Samples: Indemnification Agreement (Dura Pharmaceuticals Inc/Ca)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section ----------------------------------- 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Officer is indemnified pursuant to Section 1 hereof or reimbursed pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Officer if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Officer for an accounting of profits made from the purchase or sale by the Indemnitee Officer of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Officer's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlOfficer's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Officer or any of Officer's affiliates against Corporation or any officer, director or stockholder of Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Officer is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Officer have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Corsair Communications Inc)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section section 2 hereof shall be paid by the Company for any of the followingCompany:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(iia) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiib) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivc) prior to a Change of Control, on account of any Proceeding Indemnitee's conduct which is finally adjudged to the extent that the Indemnitee is a plaintiffhave been knowingly fraudulent, a counter-complainant deliberately dishonest or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized in the specific case by action of the Board of Directors; orwillful misconduct;
(vd) on account of Indemnitee's conduct on which it is finally adjudged that Indemnitee derived an improper personal benefit;
(e) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful lawful;
(and, in this respect, both the Company and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising f) under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).circumstances described in section 6.2 hereof; or
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(ig) in respect of any claim, issue or matter as to which action brought by Indemnitee unless (i) the Indemnitee bringing of said action shall have been adjudged in a final judgment to be liable to approved by the Company for willful misconduct in the performance Board of Directors of the Indemnitee’s duty to the Company and its shareholdersCompany, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of such indemnification is expressly required to be made by law; or
, (iii) with respect such indemnification is provided by the Company, in its sole discretion, pursuant to any transaction from which the Indemnitee derived an improper personal benefitpowers vested in the Company under the Delaware General Corporation law, or (iv) the proceeding is initiated pursuant to section 4.2 hereof.
Appears in 1 contract
Samples: Indemnification Agreement (Irvine Sensors Corp/De/)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section ----------------------------------- 2 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment Director is indemnified pursuant to Section 1 hereof or reimbursed pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to of remuneration paid to the Indemnitee Director if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding action, suit or proceeding in which final judgment is rendered against the Indemnitee Director for an accounting of profits made from the purchase or sale by the Indemnitee Director of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Director's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlDirector's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of or arising in response to any action, suit or proceeding (other than an action, suit or proceeding referred to in Section 8(b) hereof) initiated by Director or any of Director's affiliates against Corporation or any officer, director or stockholder of Corporation unless such action, suit or proceeding was authorized in the specific case by action of the Board of Directors of Corporation;
(g) on account of any Proceeding action, suit or proceeding to the extent that the Indemnitee Director is a plaintiff, a counter-complainant or a cross-complainant therein (other than an action pursuant to action, suit or proceeding permitted by Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding3(f) unless such Proceeding was authorized in the specific case by action of the Board of Directorshereof); or
(vh) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee Director have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Samples: Indemnification Agreement (Corsair Communications Inc)
Limitations on Additional Indemnity. To the extent that any of the matters set forth in subsections (a) No through (k)) of this Section 3 are successfully established by the Corporation as defenses in accordance with the provisions of Section 9 hereof, no indemnity pursuant to Section 2 hereof shall will be paid payable by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) a. on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, b. on account of any Proceeding Indemnitee's conduct from which Indemnitee derived an improper personal benefit;
c. on account of Indemnitee's conduct that he believed to be contrary to the extent best interests of the Corporation or its shareholders or that involved the Indemnitee is a plaintiff, a counter-complainant absence of good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted intentional misconduct or a cross-complainant therein (other than an action pursuant knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a reckless disregard for the Indemnitee's duty to Section 8 the Corporation or other Proceeding to enforce this Agreement its shareholders in circumstances in which Indemnitee was aware, or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized should have been aware, in the specific case by action ordinary course of performing his duties, of a risk of serious injury to the Corporation or its shareholders;
f. on account of Indemnitee's conduct that constituted an unexcused pattern of inattention that amounted to an abdication of Indemnitee's duty to the Corporation or its shareholders;
g. on account of Indemnitee's conduct which constituted a violation of the Board Indemnitee's duties under Sections 310 or 316 of Directors; orthe Code;
(v) h. for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
i. if a final judgment by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).;
j. in connection with any proceeding (bor part thereof) In addition initiated by Indemnitee, or any proceeding by Indemnitee against the Corporation or its directors, executive officers, officers, employees or other agents, unless (i) such indemnification is expressly required to those limitations set forth above be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in paragraph its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (aiv) of this Section 3, no indemnity the proceeding is initiated pursuant to Section 2 hereof in an 9 hereof;
k. with respect to any action by or in the right of the Company shall be paid by the Company for any of the followingCorporation:
(i) in respect of any claim, issue or matter as to which i. if the Indemnitee shall have been is adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding action is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses expenses, and then only to the extent that the court shall determine;
ii. for expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a pending action without court approval; and
l. to the extent, and only to the extent, that indemnification with respect to such action (i) would be inconsistent with the Articles or Bylaws, or a resolution of the shareholders or agreement of the Corporation prohibiting or otherwise limiting such indemnification and in effect at the time of the accrual of the action or (ii) would be inconsistent with any condition expressly imposed by a court in approving a settlement, unless Indemnitee, has been successful on account the merits or unless the indemnification has been approved by the shareholders of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation Corporation in accordance with Section 153 of law; or
the Code (iii) with respect to any transaction from which the shares of the Indemnitee derived an improper personal benefitnot being entitled to vote thereon).
Appears in 1 contract
Samples: Indemnification Agreement (Cypros Pharmaceutical Corp)
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder under Section 2 exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities Securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to on account of Indemnitee's acts or omissions that involve intentional misconduct or a Change knowing and culpable violation of Control, law;
(v) on account of any Proceeding to the extent that the Indemnitee is a plaintiff, a counter-complainant or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding proceeding was authorized in by the specific case by action directors of the Board of Directors; orCorporation;
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful lawful; or
(andvii) on account of any action, in this respect, both the Company and suit or proceeding commenced by the Indemnitee have been advised that against the United States Securities and Exchange Commission believes that indemnification for liabilities arising under Corporation or against any officer, director or shareholder of the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Corporation unless authorized in the specific case by action of the Board of Directors;
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company for any of the followingCorporation:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of the Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee's duty to Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing an officer's duties, of a risk of serious injury to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention and that amount to an abdication of Indemnitee's duty to Corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the Code;
(vi) to the extent prohibited by Section 316 of the California Corporations Code;
(vii) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in by a final judgment court of competent jurisdiction to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account with respect to amounts paid in settling or otherwise disposing of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) a. No indemnity pursuant to Section 2 hereof shall be paid by the Company Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment is indemnified pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii) on account of any Proceeding in which final judgment is rendered against the Indemnitee for an accounting Indemnitee's acts or omissions that involve intentional misconduct or a knowing and culpable violation of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(iv) prior to a Change of Control, on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein (other than an action pursuant to Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised proceeding initiated by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors;
(v) on account of Indemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vvi) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) b. In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company Corporation shall be paid by the Company Corporation for any of the following:
(i) on account of acts or omissions that Indemnitee believes to be contrary to the best interests of the Corporation or its shareholders or that involve the absence of good faith on the part of Indemnitee;
(ii) with respect to any transaction from which Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard for Indemnitee's duty to the Corporation or its shareholders in circumstances in which Indemnitee was aware, or should have been aware, in the ordinary course of performing such Indemnitee's duties, of a risk of serious injury to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of Indemnitee's duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the California Corporations Code, "Contracts In Which Indemnitee Has Material Financial Interest";
(vi) to the extent prohibited by Section 316 of the California Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(iiviii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; or
(iiiix) with respect to any transaction from of expenses incurred in defending a pending action which the Indemnitee derived an improper personal benefitis settled or otherwise disposed of without court approval.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity pursuant to Section 2 or 3 hereof shall be paid by the Company for any of the followingCorporation:
(ia) except to the extent the aggregate of losses losses, costs and expenses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or is indemnified pursuant to any Directors’ and Officers’ D & O Insurance purchased and maintained by the CompanyCorporation;
(iib) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiic) on account of any Proceeding suit in which final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any federal, state or local statutory law;
(ivd) prior on account of Indemnitee's conduct which is finally adjudged to a Change have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct;
(e) on account of ControlIndemnitee's conduct which is the subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any Proceeding to the extent that the Indemnitee is a plaintiffaction, a counter-complainant claim or a cross-complainant therein proceeding (other than an action pursuant a proceeding referred to in Section 8 or other Proceeding to enforce this Agreement or other indemnification rights under 8(b) hereof) initiated by the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding action, claim or proceeding was authorized in the specific case by action of the Board of Directors; orand
(vg) if a final judgment decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company Corporation and the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in the right of the Company shall be paid by the Company for any of the following:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct in the performance of the Indemnitee’s duty to the Company and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; or
(iii) with respect to any transaction from which the Indemnitee derived an improper personal benefit.
Appears in 1 contract
Limitations on Additional Indemnity. (a) No indemnity or contribution pursuant to Section 2 5 hereof shall be paid by the Company for any of the followingCorporation:
(i) except to the extent the aggregate of losses to be indemnified thereunder exceeds the sum of such losses for which the Indemnitee has actually received payment pursuant to Section 1 hereof or pursuant to any Directors’ and Officers’ Insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to the Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iiia) on account of any Proceeding in which final judgment is rendered claim against the Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company pursuant to Corporation within the provisions meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) 1934, as amended, or similar provisions of any federal, state statutory law or local statutory common law;
(ivb) prior to a Change of Control, on account of any Proceeding claims for which payment is actually made to the extent that Indemnitee under a valid and collectible corporate insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any excess beyond payment under such insurance, clause, by-law or agreement;
(c) if indemnification is not lawful, as established in a final adjudication not subject to further appeal;
(d) in connection with any Proceeding (or part thereof) initiated by the Indemnitee, or any Proceeding by the Indemnitee against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is a plaintiffexpressly required to be made by applicable law, a counter-complainant (ii) the Proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the DGCL, or a cross-complainant therein (other than an action iv) the Proceeding is initiated pursuant to Section 8 10(d) hereof;
(e) on account of the Indemnitee's acts or other omissions that involve intentional misconduct or a knowing and culpable violation of law, as established in a final adjudication not subject to further appeal;
(f) in accordance with Section 145 of the DGCL, if the Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, as established in a final adjudication not subject to further appeal, and, with respect to any criminal Proceeding, Indemnitee had reasonable cause to believe Indemnitee's conduct was unlawful (the termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that (i) Indemnitee did not act in good faith, (ii) Indemnitee did not act in a manner which Indemnitee reasonably believed to enforce this Agreement or other indemnification rights under the Articles or applicable law or any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding) unless such Proceeding was authorized be in the specific case by action best interests of the Board Corporation, or (iii) with respect to any criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful);
(g) in respect of Directorsany action brought by or in the right of the Corporation to procure a judgment in its favor for breach of the Indemnitee's duties to the Corporation and its shareholders, as established in a final adjudication not subject to further appeal:
(i) if the Indemnitee's acts or omissions have been based upon or attributable to Indemnitee's in fact having gained any personal profit or advantage to which Indemnitee was not legally entitled;
(ii) on account of the Indemnitee's acts or omissions that show a reckless disregard for the Indemnitee's duty to the Corporation or its shareholders in circumstances in which the Indemnitee was aware, or should have been aware, in the ordinary course of performing the Indemnitee's duties, of a risk of serious injury to the Corporation or its shareholders; or
(viii) if a final judgment by a Court having jurisdiction in on account of the matter shall determine Indemnitee's acts or omissions that such indemnification is not lawful (and, in this respect, both constitute an unexcused pattern of inattention that amounts to an abdication of the Company and Indemnitee's duty to the Indemnitee have been advised that the United States Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication).Corporation or its shareholders;
(bh) In addition to those limitations set forth above in paragraph (a) respect of this Section 3, no indemnity pursuant to Section 2 hereof in an any action by or in the right of the Company shall be paid by the Company for any of the followingCorporation to procure a judgment in its favor, as established in a final adjudication not subject to further appeal:
(i) in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged in a final judgment to be liable to the Company for willful misconduct Corporation in the performance of the Indemnitee’s 's duty to the Company Corporation and its shareholders, unless and only to the extent that the court in which such Proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, the Indemnitee such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(ii) on account of the Indemnitee’s acts amounts paid in settling or omissions that involve intentional misconduct or otherwise disposing of a knowing and culpable violation of lawpending action without court approval; orand
(iii) with respect of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval; and
(j) On account of the operation of a "clawback" policy adopted by the Board of Directors requiring the Corporation to any transaction from which the Indemnitee derived recover amounts paid to an improper personal benefitexecutive following a restatement of its financial statements.
Appears in 1 contract
