Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. (b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 8 contracts
Samples: Indemnification Agreement (Tender Loving Care Health Care Services Inc/ Ny), Indemnification Agreement (Tender Loving Care Health Care Services Inc/ Ny), Indemnification Agreement (Tender Loving Care Health Care Services Inc/ Ny)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, ; or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 7 contracts
Samples: Indemnification Agreement (Mimvi, Inc.), Indemnification Agreement (Mimvi, Inc.), Merger Agreement (Mimvi, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, occurred in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-60- day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise ---- ---------- expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 6 contracts
Samples: Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination under Section 5(c) with respect to entitlement to indemnification hereunderunder Section 2(a), the person or person, persons or entity making such that determination shall must presume that Indemnitee is entitled to that indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement5(a), and the Company shall will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter Claim therein, by judgment, order, settlement or conviction, or upon on a plea of nolo contendere or its equivalent, shall not (will not, except as this Agreement otherwise expressly provided in this Agreement) provides, of itself adversely affect the right of Indemnitee to indemnification or hereunder or, in the case of any determination under Section 5(c) of Indemnitee's entitlement to indemnification under Section 2(a), create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful.
(c) Any service of Indemnitee as a Functionary of the Company or any Related Enterprise which imposes duties on, or involves services by, Indemnitee with respect to any Related Enterprise that is an employee benefit or welfare plan or related trust, if any, or the participants or beneficiaries of that plan or trust will be deemed for all purposes hereof as service at the request of the Company. Any action Indemnitee takes or omits to take in connection with any such plan or trust will, if taken or omitted in good faith by Indemnitee and in a manner Indemnitee reasonably believed to be in the interest of the participants in or beneficiaries of that plan or trust, be deemed to have been taken or omitted in a manner "not opposed to the best interests of the Company" for all purposes hereof. Service by a person as an agent or representative of an Enterprise means service on behalf of that Enterprise in its relations with persons and entities other than the Affiliates and Functionaries of that Enterprise.
(d) For purposes of any determination hereunder as to whether Indemnitee has performed services or engaged in conduct on behalf of any Enterprise in good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted in reliance on the records of the Enterprise or on information, opinions, reports or statements, including financial statements and other financial information, concerning the Enterprise or any other Person which were prepared or supplied to Indemnitee by:
(1) one or more of the officers or employees of the Enterprise;
(2) appraisers, engineers, investment bankers, legal counsel or other Persons as to matters Indemnitee reasonably believed were within the professional or expert competence of those Persons; and
(3) any committee of the board of directors or equivalent managing body of the Enterprise of which Indemnitee is or was, at the relevant time, not a member; provided, however, that if Indemnitee has actual knowledge as to any matter that makes any such reliance unwarranted as to that matter, this Section 6(d) will not entitle Indemnitee to any presumption that Indemnitee acted in good faith respecting that matter.
(e) For purposes of any determination hereunder as to whether Indemnitee is entitled to indemnification under Section 2(a), neither the knowledge nor the conduct of any other Functionary of the Company or any Related Enterprise, other than Indemnitee, shall be imputed to Indemnitee, but Indemnitee will be irrebutably presumed to have read and understood the Company's code of business conduct for purposes of any determination under the Charter Documents or this Agreement as to whether Indemnitee has performed services or engaged in conduct on behalf of any Enterprise in good faith.
(f) Indemnitee will be deemed a party to a Proceeding for all purposes hereof if Indemnitee is named as a defendant or respondent in a complaint or petition for relief in that Proceeding, regardless of whether Indemnitee ever is served with process or makes an appearance in that Proceeding.
(g) If Indemnitee serves or served as a Functionary of a Related Enterprise, that service will be deemed to be "at the request of the Company" for all purposes hereof notwithstanding that the request is not evidenced by a writing or shown to have been made orally. In the event the Company were to extend the rights of indemnification and advancement of Expenses hereunder to Indemnitee's serving at the request of the Company as a Functionary of any Enterprise other than the Company or a Related Enterprise, Indemnitee must show that the request was made by the Board or at its authorization.
Appears in 6 contracts
Samples: Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Transportation Partners Lp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 6 contracts
Samples: Indemnification Agreement (Midcoast Energy Resources Inc), Indemnification & Liability (Midcoast Energy Resources Inc), Indemnification Agreement (Midcoast Energy Resources Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, occurred in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo ---- contendere or its equivalent, shall not (except as otherwise expressly provided ---------- in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 5 contracts
Samples: Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, and following the person or persons or entity making such determination procedures in Section 9, as applicable, it shall presume be presumed that the Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s right to indemnification shall not have been made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 5 contracts
Samples: Employment Agreement (Aspen Group, Inc.), Indemnification Agreement (GelTech Solutions, Inc.), Indemnification Agreement (IDI, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefortherefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall sha1l be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if a majority of Disinterested Directors, the stockholders, or Independent Counsel through a written opinion determines that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 5 contracts
Samples: Indemnification Agreement (Forbes Energy Services Ltd.), Severance Agreement (Powell Industries Inc), Indemnification Agreement (Forbes Energy Services Ltd.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereatthreat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination of entitlement is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which that he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 4 contracts
Samples: Indemnification Agreement (Rohn Industries Inc), Indemnification Agreement (Rohn Industries Inc), Indemnification Agreement (Rohn Industries Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change The Secretary of Control shall have occurredthe Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in making a determination with respect to entitlement to indemnification hereunder, writing the Board of Directors or such other person or persons or entity empowered to make the determination as provided in Section 10 that Indemnitee has made such request for indemnification. Upon making such determination request for indemnification, Indemnitee shall presume that Indemnitee is be presumed to be entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, hereunder and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that such presumption.
(b) . If a person, the person or persons or entity so empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled make such determination shall have failed to make the requested indemnification shall not have made a determination with within 60 days after receipt by the Company of the request thereforsuch request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, to the fullest extent not prohibited by law and absent (i) a misstatement by Indemnitee of a actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, person or persons or entity making so empowered to make the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining to obtain or evaluating of evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) 11 shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b10(a) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b10(a) of this Agreement.
(c) . The termination of any Proceeding action, suit, investigation or of any claim, issue proceeding described in Section 3 or matter therein, 4 hereof by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not not, of itself: (except as otherwise expressly provided in this Agreementx) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company orCompany, and, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful; or (y) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein or by applicable law.
(b) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company and/or its affiliates, including financial statements, or on information supplied to Indemnitee by the officers of the Company and/or its affiliates in the course of their duties, or on the advice of legal counsel for the Company and/or its affiliates or on information or records given or reports made to the Company and/or its affiliates by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Company and/or an affiliate thereof. The provisions of this Section 11(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(c) The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or any affiliate thereof shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Appears in 4 contracts
Samples: Indemnification Agreement (Archrock, Inc.), Indemnification Agreement (Exterran Corp), Indemnification Agreement (Exterran Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 one hundred twenty (120) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 one hundred five (105) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 4 contracts
Samples: Employment Agreement (Thermo Electron Corp), Employment Agreement (Thermo Electron Corp), Employment Agreement (Thermo Electron Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-30 day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 4 contracts
Samples: Indemnification Agreement (Optical Communication Products Inc), Indemnification Agreement (Geocities), Indemnification Agreement (Valueclick Inc/Ca)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, and following the person or persons or entity making such determination procedures in Section 9, as applicable, it shall presume be presumed that the Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 determination of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s right to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 3 contracts
Samples: Indemnification Agreement (Cocrystal Pharma, Inc.), Indemnification Agreement (Quepasa Corp), Indemnification Agreement (Quepasa Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, occurred in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 3 contracts
Samples: Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/), Indemnification Agreement (Brown & Sharpe Manufacturing Co /De/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 3 contracts
Samples: Indemnification Agreement (BJ's Wholesale Club Holdings, Inc.), Indemnification Agreement (BJ's Wholesale Club Holdings, Inc.), Indemnification Agreement (BJ's Wholesale Club Holdings, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, and following the person or persons or entity making such determination procedures in Section 9, as applicable, it shall presume be presumed that the Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s right to indemnification shall not have been made a determination with 60 within 30 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 3 contracts
Samples: Employment Agreement (Aspen Group, Inc.), Employment Agreement (Aspen Group, Inc.), Employment Agreement (Aspen Group, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of in Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day sixty (60)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, ; or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 3 contracts
Samples: Indemnification Agreement (Great Basin Scientific, Inc.), Indemnification Agreement (Helios & Matheson Analytics Inc.), Indemnification Agreement (Helios & Matheson Analytics Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The failure of the Company to award indemnification or to determine that indemnification is payable shall not create an adverse presumption that Indemnitee is not entitled to indemnification under this Agreement. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 3 contracts
Samples: Indemnification Agreement (Allied Waste Industries Inc), Indemnification Agreement (Allied Waste Industries Inc), Indemnification Agreement (Allied Waste Industries Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved Directors, or Disinterested Directors, as appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 90 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 60 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 90 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Coterra Energy Inc.), Indemnification Agreement (Cabot Oil & Gas Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change The Secretary of Control shall have occurredthe Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in making a determination with respect to entitlement to indemnification hereunder, writing the Board or such other person or persons or entity empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such determination request for indemnification, Indemnitee shall presume that Indemnitee is be presumed to be entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, hereunder and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that such presumption.
(b) . If a person, the person or persons or entity so empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 45 days (or in the case of an advancement of Expenses in accordance with 60 days Section 16, 20 days; provided that Indemnitee has, if and to the extent required by the DGCL, delivered the undertaking contemplated in Section 16) after receipt by the Company of the request thereforsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that and such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement right to indemnification shall be enforceable by Indemnitee in good faith requires such additional time for the obtaining or evaluating any court of documentation and/or information relating theretocompetent jurisdiction; and provided, further, provided that the foregoing provisions of this Section 9(b) 9 shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b8(a) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) . The termination of any Proceeding described in Sections 3 or of any claim, issue or matter therein, 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement), of itself: (a) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful; or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein.
Appears in 2 contracts
Samples: Indemnification Agreement (Clearway Energy, Inc.), Indemnification Agreement (NRG Yield, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Cabot Oil & Gas Corp), Indemnification Agreement (Pfizer Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a In any determination with respect to entitlement to indemnification hereunderunder this Agreement, the person or persons or entity making such determination shall presume it must be presumed that Indemnitee is entitled to that indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement5(a), and the Company shall and the Partnership will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter Claim therein, by judgment, order, settlement or conviction, or upon on a plea of nolo contendere or its equivalent, shall not (will not, except as this Agreement otherwise expressly provided provides in this Agreement) Section 2(a), of itself adversely affect the right of Indemnitee to indemnification hereunder or create a presumption that Indemnitee did is not act in good faith and in entitled to indemnification.
(c) Any service of Indemnitee as a manner which he reasonably believed to be in or not opposed to the best interests Functionary of the Company orCompany, the Partnership or any Related Enterprise which imposes duties on, or involves services by, Indemnitee with respect to any criminal Related Enterprise that is an employee benefit or welfare plan or related trust, if any, or the participants or beneficiaries of that plan or trust, will be deemed for all purposes hereof as service at the request of the Company and the Partnership.
(d) For purposes of any determination hereunder as to whether Indemnitee is entitled to indemnification hereunder, neither the knowledge nor the conduct of any other Functionary of the Company, the Partnership or any Related Enterprise, other than Indemnitee, shall be imputed to Indemnitee.
(e) Indemnitee will be deemed a party to a Proceeding for all purposes hereof if Indemnitee is named as a defendant or respondent in a complaint or petition for relief in that Proceeding, regardless of whether Indemnitee ever is served with process or makes an appearance in that Proceeding.
(f) If Indemnitee had reasonable cause serves or served as a Functionary of a Related Enterprise, that service will be deemed to believe be "at the request of the Company and the Partnership" for all purposes hereof notwithstanding that his conduct was unlawfulthe request is not evidenced by a writing or shown to have been made orally.
Appears in 2 contracts
Samples: Indemnification Agreement (Encore Energy Partners LP), Indemnification Agreement (Encore Energy Partners LP)
Presumptions and Effect of Certain Proceedings. (a) If a Change of in Control shall have occurred, Indemnitee shall be presumed (except as otherwise expressly provided in making a determination with respect this Agreement) to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is be entitled to indemnification under this Agreement if Indemnitee has submitted upon submission of a request for indemnification in accordance with under Section 8(a) of this Agreement5.1, and thereafter the Company Corporation shall have the burden of proof to overcome in overcoming that presumption in connection with the making by any person, persons or entity of any reaching a determination contrary to that presumption. The presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless the Corporation provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Independent Counsel (or such other person or persons) convinces him or them by clear and convincing evidence that the presumption should not apply.
(b) If a person, the person or persons or entity empowered or selected under Section 8 Article 5 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 days after receipt by the Company Corporation of the request by Indemnitee therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or an knowing omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, misleading in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating theretoto such determination; and provided, further, that the foregoing provisions of 60-day limitation set forth in this Section 9(b5.4(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 30 days after receipt by the Company Corporation of the request for such determination indemnification under Section 5.1 the Board of Directors has resolved to submit such determination to the stockholders shareholders pursuant to Section 5.2(b) of this Agreement for their consideration at an annual meeting thereof to be held within 75 90 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 30 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b5.2(a) of this Agreement, in which case the applicable period shall be as set forth in Section 6.1(c).
(c) The termination of any Proceeding or of any claim, issue or matter therein, Claim by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of by itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act conduct himself in good faith and in a manner which he that Indemnitee reasonably believed to be in or the case of conduct in Indemnitee’s official capacity, that was not in the best interests of the Corporation or, in all other cases, that was not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim only after Indemnitee shall have been so adjudged by a Court after exhaustion of all appeals therefrom.
Appears in 2 contracts
Samples: Indemnification Agreement (Consolidated Graphics Inc /Tx/), Indemnification Agreement (Consolidated Graphics Inc /Tx/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (PharmaNet Development Group Inc), Indemnification Agreement (PharmaNet Development Group Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in Any person(s) making a determination with respect to entitlement of whether Indemnitee is entitled to indemnification or advancement of Expenses hereunder, the person or persons or entity making such determination : (i) shall presume do so based on a rebuttable presumption that Indemnitee is entitled to indemnification under this Agreement if and/or advancement of Expenses hereunder, that Indemnitee has submitted not engaged in Disabling Conduct, that Indemnitee's actions in a request for indemnification Corporate Status were based on Indemnitee's determination that those actions were in accordance with Section 8(a) the best interests of this Agreementthe Trust, and that no other controlling standard applies that would prohibit the Company Trust under applicable law from providing indemnification or advancement of Expenses under the standard in Sections 3 or 4 hereof; and (ii) shall have require that, to overcome such presumption and to make any contrary determination, the Trust shall bear the burden of proof and persuasion to overcome show, based on a review of the readily available facts, that presumption the Trust is prohibited by applicable law from providing indemnification or advancement of Expenses under the standard in connection Sections 3 or 4 hereof, either due to Disabling Conduct that gave rise to the claim, issue or matter for which indemnification or advancement of Expenses is sought and which is asserted against Indemnitee in the Proceeding, or based on application of another controlling standard which is recognized by applicable law and which is shown to apply with respect to the making by any person, persons request for indemnification or entity advancement of any determination contrary to that presumptionExpenses.
(b) If In the event the Board of Trustees is required to make a person, persons or entity empowered or selected under Section 8 determination of this Agreement to determine whether Indemnitee is entitled Indemnitee's entitlement to indemnification shall or advancement of Expenses in accordance with Sections 4(d), 5(c)(2) or 5(c)(3) hereof, but does not have made a provide notice to Indemnitee of such determination with 60 within the later of (i) forty-five (45) days after receipt by the Company Trust of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, notice in connection accordance with the request for indemnificationSections 4(b) and/or 5(a) hereof, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification a request for indemnification, thirty (30) days after Indemnitee substantially complies with a request for information in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and providedaccordance with Section 5(e) hereof, further, that the foregoing provisions of this Section 9(b) Indemnitee shall not apply (i) if the determination of entitlement to indemnification is be deemed to be made by the stockholders pursuant entitled to Section 8(b) such indemnification or advancement of Expenses, absent a prohibition under applicable law against providing indemnification or advancement of Expenses on this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreementbasis.
(c) The Except as otherwise expressly provided in this Agreement, the termination of any Proceeding Proceeding, or of any claim, issue or matter thereinrelated thereto, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not be deemed a sufficient ground (except as otherwise expressly provided i) to deny a request for indemnification or advancement of Expenses submitted in accordance with this Agreement, or (ii) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did engaged in Disabling Conduct or is not act in good faith and in a manner entitled to indemnification or advancement of Expenses based on application of another controlling standard which he reasonably believed to be in or not opposed to the best interests of the Company is recognized by applicable law, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Lincoln Variable Insurance Products Trust), Indemnification Agreement (Lincoln Advisors Trust)
Presumptions and Effect of Certain Proceedings. (a) If a Change of in Control shall have occurred, the Indemnitee shall be presumed (except as otherwise expressly provided in making a determination with respect this Agreement) to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is be entitled to indemnification under this Agreement if Indemnitee has submitted upon submission of a request for indemnification in accordance with under Section 8(a) of this Agreement5.1, and thereafter the Company Corporation shall have the burden of proof to overcome in overcoming that presumption in connection with the making by any person, persons or entity of any reaching a determination contrary to that presumption. The presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless the Corporation provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Independent Counsel (or such other person or persons) convinces him by clear and convincing evidence that the presumption should not apply.
(b) If a person, the person or persons or entity empowered or selected under Section 8 Article V of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request by Indemnitee therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or an knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating theretoto such determination; and provided, further, that the foregoing provisions of 60-day limitation set forth in this Section 9(b5.4(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 30 days after receipt by the Company Corporation of the request for such determination indemnification under Section 5.1 the Board of Directors has resolved to submit such determination to the stockholders shareholders pursuant to Section 5.2(b) of this Agreement for their consideration at an annual meeting thereof to be held within 75 90 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 30 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and for such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.purpose
(c) The termination of any Proceeding or of any claim, issue or matter therein, Claim by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of by itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act conduct himself in good faith and in a manner which that he reasonably believed to be in or the case of conduct in his official capacity, that was in the best interests of the Corporation or, in all other cases, that was not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim only after he shall have been so adjudged by a court in competent jurisdiction after exhaustion of all appeals therefrom.
Appears in 2 contracts
Samples: Indemnification Agreement (Carrizo Oil & Gas Inc), Indemnification Agreement (Carrizo Oil & Gas Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement Agreement, if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons person or entity of or any determination contrary to that presumption.
(b) If a person, persons the person or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons person or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, provided further, that the foregoing provisions of or this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy (70) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders (i) is called within 15 fifteen (15) days after such receipt for the purpose purposes of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by the Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere contendre or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect effect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Amtrust Financial Services, Inc.), Indemnification Agreement (Maiden Holdings, Ltd.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (Humana Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in i. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement these Bylaws if Indemnitee has submitted a notice and a request for indemnification in accordance with Section 8(a8(k) of these Bylaws. Anyone seeking to overcome this Agreement, and the Company presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Corporation (including by the Board) or of Independent Counsel to overcome that presumption in connection with have made a determination prior to the making by any person, persons or entity of any determination contrary to that presumptioncommencement.
(b) ii. If a the person, persons or entity empowered or selected under Section 8 8(m) of this Agreement these Bylaws to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company Corporation of the Indemnitee’s written request thereforfor indemnification pursuant to Section 8(k) of these Bylaws, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) iii. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreementthese Bylaws) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful.
Appears in 2 contracts
Samples: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day sixty (60)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, ; or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Cyberdefender Corp), Indemnification Agreement (Cyberdefender Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereatthreat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination of entitlement is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification hereunder or create a presumption that Indemnitee did not act in good faith and in a manner which that he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was wads unlawful.
(d) For purposes of any determination of good faith hereunder, Indemnitee shall be deemed to have acted in good faith if in taking such action Indemnitee relied on the records or books of account of the Corporation, including financial statements, or on information supplied to Indemnitee by the officers of the Corporation in the course of their duties, or on the advice of legal counsel for the Corporation or on information or records given or reports made to the Corporation by an independent certified public accountant or by an appraiser or other expert selected with reasonable care to the Corporation. The Corporation shall have the burden of establishing the absence of good faith. The provisions of this Section 9(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Appears in 2 contracts
Samples: Indemnification Agreement (Rohn Industries Inc), Indemnification Agreement (Rohn Industries Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Maxworldwide Inc), Indemnification Agreement (Peerless Systems Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 2 contracts
Samples: Indemnification Agreement (Onix Systems Inc), Employment Agreement (Thermo Electron Corp)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, and following the person or persons or entity making such determination procedures in Section 9, as applicable, it shall presume be presumed that the Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s right to indemnification shall not have been made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his her conduct was unlawful.
Appears in 2 contracts
Samples: Employment Agreement (Aspen Group, Inc.), Employment Agreement (Aspen Group, Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers and directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 2 contracts
Samples: Indemnification Agreement (Marketfirst Software Inc), Indemnification Agreement (Colorbus Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in a. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) b. If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-30 day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) c. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
d. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Optical Communication Products Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in Any person(s) making a determination with respect to entitlement of whether Indemnitee is entitled to indemnification or advancement of Expenses hereunder, the person or persons or entity making such determination : (i) shall presume do so based on a rebuttable presumption that Indemnitee is entitled to indemnification under this Agreement if and/or advancement of Expenses hereunder, that Indemnitee has submitted not engaged in Disabling Conduct, that Indemnitee’s actions in a request for indemnification in accordance with Section 8(a) Corporate Status were based on Indemnitee’s determination that those actions were in, or not opposed to, the best interests of this AgreementCompany, and that no other controlling standard applies that would prohibit Company under applicable law from providing indemnification or advancement of Expenses under the standard in Sections 3 or 4 hereof; and (ii) shall require that, to overcome such presumption and to make any contrary determination, Company shall have bear the burden of proof and persuasion to overcome show, by clear and convincing evidence, that presumption Company is prohibited by applicable law from providing indemnification or advancement of Expenses under the standard in connection Sections 3 or 4 hereof, either due to Disabling Conduct that gave rise to the claim, issue or matter for which indemnification or advancement of Expenses is sought and which is asserted against Indemnitee in the Proceeding, or based on application of another controlling standard which is recognized by applicable law and which is shown to apply with respect to the making by any person, persons request for indemnification or entity advancement of any determination contrary to that presumptionExpenses.
(b) If In the event the Board of Trustees or Independent Counsel is required to make a person, persons or entity empowered or selected under Section 8 determination of this Agreement to determine whether Indemnitee is entitled Indemnitee’s entitlement to indemnification shall or advancement of Expenses in accordance with Sections 4(d), 5(b)(2) or 5(b)(3) hereof, but does not have made a provide notice to Indemnitee of such determination with 60 within the later of (i) forty-five (45) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (iIndemnitee’s notice in accordance with Sections 4(b) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (iiand/or 5(a) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) hereof if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereatTrustees, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) forty-five (45) days after the selection of Independent Counsel in accordance with Section 5(c) hereof if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant Counsel, or (iii) with respect to a request for indemnification, thirty (30) days after Indemnitee substantially complies with a request for information in accordance with Section 8(b5(e) hereof, Indemnitee shall be deemed to be entitled to such indemnification or advancement of Expenses, absent a prohibition under applicable law against providing indemnification or advancement of Expenses on this Agreementbasis.
(c) The Except as otherwise expressly provided in this Agreement, the termination of any Proceeding Proceeding, or of any claim, issue or matter thereinrelated thereto, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not be deemed a sufficient ground (except as otherwise expressly provided i) to deny a request for indemnification or advancement of Expenses submitted in accordance with this Agreement, or (ii) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did engaged in Disabling Conduct or is not act in good faith and in a manner entitled to indemnification or advancement of Expenses based on application of another controlling standard which he reasonably believed to be in or not opposed to the best interests of the Company is recognized by applicable law, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Select Sector SPDR Trust)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to of indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons person or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, time not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and and, provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere contendre or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption be deemed to constitute an adjudication that Indemnitee did not act in good faith and in a manner which he reasonably believed to be the reasonable belief that his action was in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawfulCompany.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, Agreement and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification (i) a misstatement by Indemnitee of a absent actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (ii)(A) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (AB)(1) if, within 15 fifteen (15) days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, thereat or (B2) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, thereat or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, officers or key employees of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, employee, agent, or fiduciary of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (La Jolla Pharmaceutical Co)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall will, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a11(a) of this Agreement, and the Company shall will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 the determination of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s entitlement to indemnification shall has not have been made a determination with 60 pursuant to Section 12 within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 12(a) and (ii) the request thereforfinal disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification shall will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period Applicable Law. The Determination Period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(bDetermination Period may be extended an additional fifteen (15) shall not apply (i) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b12(a)(iv) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Xxxxxxxxxx’s conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Xxxxxxxxxx will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) are not exclusive and do not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise, other than the Indemnitee, may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within 30 days after receipt by the Company of the request therefortherefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to for indemnification hereunder, the person or persons or entity making such determination shall presume (unless there is clear and convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity the person(s) so empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled make such determination shall have failed to indemnification shall not have made a make the requested determination with 60 within sixty (60) days after receipt by the Company Corporation of the request thereforsuch request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, indemnification absent (i) a misstatement by Indemnitee of a actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable lawfraud; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires require(s) such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders of the Corporation pursuant to Section 8(b6(b)(iii) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Legal Counsel pursuant to Section 8(b6(b)(ii) of this Agreement.
(c) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Corporation, including, without limitation, financial statements, or on information supplied to Indemnitee by the officers of the Corporation in the course of their duties, or on the advice of legal counsel for the Corporation or on information or records given or reports made to the Corporation by an independent certified public accountant, by a financial advisor or by an appraiser or other expert selected with reasonable care by the Corporation. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 7 are satisfied, it shall in any event be presumed (unless there is clear and convincing evidence to the contrary) that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation. Neither the failure of the Corporation (including by its directors or Independent Legal Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation (including by its directors or Independent Legal Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(d) The termination of any a Proceeding or of any claim, issue or matter therein, described in Section 4 hereof by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, (i) establish that Indemnitee does not meet the criteria for entitlement to indemnification set forth in Section 4 hereof or (except as ii) otherwise expressly provided in this Agreement) of itself adversely affect the right rights of Indemnitee to indemnification except as may be provided herein. The knowledge and/or actions, or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed failure to be in act, of any other director, officer, trustee, partner, managing member, fiduciary, agent or not opposed to the best interests employee of the Company or, with respect Corporation shall not be imputed to any criminal Proceeding, that Indemnitee had reasonable cause for purposes of determining the right to believe that his conduct was unlawfulindemnification under this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Progenics Pharmaceuticals Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, fact or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Netsource Communications Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification or the advancement of Expenses hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification or advancement of expenses under this Agreement if Indemnitee has submitted a request for indemnification or the advancement of expenses in accordance with Section 8(a5(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if if:
(Ai) within 15 days after receipt by the Company Corporation of the request for such determination determination, the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or ; or
(Bii) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination For purposes of any Proceeding determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on:
(i) the records or books of any claimaccount of the Corporation or relevant enterprise, issue including financial statements; or
(ii) information supplied to Indemnitee by the officers of the Corporation or matter therein, relevant enterprise in the course of their duties; or
(iii) the advice of legal counsel for the Corporation or relevant enterprise; or
(iv) information or records given in reports made to the Corporation or relevant enterprise by judgment, order, settlement an independent certified public accountant or conviction, by an appraiser or upon a plea other expert selected with reasonable care by the Corporation or relevant enterprise; or
(d) The provisions of nolo contendere or its equivalent, this Section shall not (except as otherwise expressly provided be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreementhereof, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, the persons or entity empowered or selected under Section 8 of this Agreement 7 hereof to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within ninety (90) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement ’s statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-ninety (90) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement hereof and if (A) within 15 thirty (30) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreementhereof.
(c) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that Indemnitee has not met the standards of conduct that make it permissible under the Act for the Company to indemnify Indemnitee for the amount claimed. Neither the failure of the persons empowered or selected under Section 7 hereof to have made a determination prior to the commencement of such action that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in the Act, nor an actual determination by the persons empowered or selected under Section 7 hereof that Indemnitee had not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(d) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) not, of itself adversely affect the right of Indemnitee to indemnification or itself, create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company orand, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful.
(e) For purposes of any determination under this Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s action is based on good faith reliance on the records or books of account of the Company or another enterprise, or on information supplied to Indemnitee by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, thereat or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself itself, adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-30 day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement, in which case the determination of entitlement shall be made within thirty (30) days after the earlier of the date on which (a) the non-selecting party has agreed to the selection of Independent Counsel; (b) the time for objection to the selection of Independent Counsel has expired; or (c) any objection to the selection of Independent Counsel has been resolved.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orand, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if Indemnitee’s action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 8(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that the entry of a guilty plea by Indemnitee in a criminal Proceeding shall, for purposes of this Agreement, be deemed to be a final judicial decision from which there is no further right to appeal, irrespective of whether a sentence has been entered on such guilty plea, and an ultimate determination of Indemnitee’s entitlement to indemnification or advancement of Expenses under this Agreement may be made on the basis of such plea.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 one hundred twenty (120) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 one hundred five (105) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Indepen dent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption presump tion that Indemnitee did not act in good faith and in a manner which he that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (L90 Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunderindemnification, the person or persons or entity making such the determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a10(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 10 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within 30 days after receipt by the Company of the request thereforrequest, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60the 30-day period may be extended for a reasonable time, not to exceed an additional 30 15 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such the additional time for the obtaining or evaluating of documentation and/or information relating theretoinformation; and provided, further, that the foregoing provisions of this Section 9(b11(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b10(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such the determination the Board of Directors has resolved to submit such the determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereatthere, or (B) a special meeting of stockholders stock holders is called within 15 days after such receipt for the purpose of making such a determination, such the meeting is held for such purpose within 60 days after having been so called and such the determination is made thereatthere, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b10(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter thereinin it, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption be determinative that Indemnitee did not act meet the requirements set forth in good faith and Section 3. Indemnitee shall be deemed to have been found liable in respect of any claim, issue or matter only after Indemnitee shall have been so adjudged by a manner which he reasonably believed to be in or not opposed to the best interests court of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.competent jurisdiction after exhaustion of all appeals. 7
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, Agreement and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification (i) a misstatement by Indemnitee of a absent actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i)
(A) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (AB)(1) if, within 15 fifteen (15) days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, thereat or (B2) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, thereat or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as defined in Section 15), including financial statements, or on information supplied to Indemnitee by the directors, officers or key employees of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their PAGE consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in a. In making a determination with respect to entitlement to indemnification or the advancement of Expenses hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification or advancement of expenses under this Agreement if Indemnitee has submitted a request for indemnification or the advancement of expenses in accordance with Section 8(a5(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) b. If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) if:
i. within 15 days after receipt by the Company Corporation of the request for such determination determination, the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) ; or
ii. a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat.
c. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on:
i. the records or (books of account of the Corporation or relevant enterprise, including financial statements; or
ii) if . information supplied to Indemnitee by the determination officers of the Corporation or relevant enterprise in the course of their duties; or
iii. the advice of legal counsel for the Corporation or relevant enterprise; or
iv. information or records given in reports made to entitlement to indemnification is the Corporation or relevant enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or relevant enterprise.
d. The provisions of this Section shall not be deemed to be made by Independent Counsel pursuant exclusive or to Section 8(b) limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that such presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 8(a) of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating evaluation of documentation and/or information relating thereto; and provided, provided further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is (i) called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 fifty (50) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by the Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Covista Communications Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons person, persons, or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons persons, or entity of any determination contrary to that presumption.
(b) If a the person, persons persons, or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons persons, or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue issue, or matter therein, therein by judgment, order, settlement settlement, or conviction, or upon a plea of nolo contendere contendre or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which that he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Ophthalmic Imaging Systems Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a -------- ------- reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, -------- further, that the foregoing provisions of this Section 9(b) shall not apply (i) ------- if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly ---- ---------- provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 5 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or or
(ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-30 day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b5(b) of this Agreement and if (Aif(A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of of' stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or or
(iiiii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere contendre or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change Without limiting the generality of Control shall have occurredany other provision hereof, in making a determination with respect to entitlement to indemnification hereunderof whether Indemnitee has been successful on the merits or otherwise in defense of any or all Claims or Proceedings, or in defense of any issue or matter therein, the person Corporation acknowledges that a resolution, disposition or persons outcome short of dismissal or entity making final judgment, including outcomes that permit Indemnitee to avoid expense, delay, embarrassment, injury to reputation, distraction, disruption or uncertainty, may constitute such determination success. In the event that any Claim or Proceeding or issue or matter therein is resolved or disposed of in any manner other than by adverse judgment against Indemnitee (including any resolution or disposition thereof by means of settlement with or without payment of money or other consideration), it shall presume be presumed that Indemnitee is has been successful on the merits or otherwise in defense of such Claim or Proceeding or issue or matter therein. The Corporation may overcome such presumption only by its adducing clear and convincing evidence to the contrary.
(b) Indemnitee shall be presumed to be entitled to indemnification under this Agreement if Indemnitee has submitted upon submission of a request to the Corporation for indemnification in accordance with under Section 8(a) of this Agreement5.1, and the Company Corporation shall have the burden of proof to overcome in overcoming that presumption in connection with the making by any person, persons or entity of any reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or such other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless the presumption is overcome by the Corporation’s providing information sufficient to overcome such presumption by clear and convincing evidence or unless the investigation, review and analysis of Independent Counsel (or such other person or persons) convinces Independent Counsel (or such other person or persons) by clear and convincing evidence that the presumption should not apply.
(bc) If a person, the person or persons or entity empowered or selected under Section 8 Article V of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request by Indemnitee therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period - 11 - may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating theretoto such determination; and provided, further, that the foregoing provisions of 60-day limitation set forth in this Section 9(b5.4(c) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 30 days after receipt by the Company Corporation of the request for such determination indemnification under Section 5.1 Indemnitee and the Corporation have agreed, and the Board of Directors has resolved resolved, to submit such determination to the stockholders shareholders of the Corporation pursuant to Section 5.2(b)(iv) for their consideration at an annual meeting thereof of shareholders to be held within 75 90 days after such receipt agreement and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 30 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b5.2(a) of this Agreement, in which case the applicable period shall be as set forth in Section 6.1(c). Notwithstanding any other provision in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall be required to be made prior to the final disposition of any Claim.
(cd) The termination of any Proceeding or of any claimClaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of by itself adversely affect the right rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed failed to be in or not opposed to the best interests meet any particular standard of the Company or, with respect to any criminal Proceedingconduct, that Indemnitee had any particular belief or that a court has determined that indemnification is not permitted by applicable law. Indemnitee shall be deemed to have been found liable in respect of any Proceeding or Claim, issue or matter only after Indemnitee shall have been so adjudged by the Court after exhaustion of all appeals therefrom.
(e) For purposes of this Agreement, and without creating any presumption as to a lack of good faith if the following circumstances do not exist, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s actions or omissions to act are in good faith reliance, and with ordinary care, upon the records of the Corporation or upon information, opinions, reports or statements, including financial statements and other financial data, furnished to Indemnitee and prepared or presented by the officers or employees of the Corporation or any of its Subsidiaries in the course of their duties, or by committees of the Board or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable cause to believe that his conduct was unlawfulcare by or on behalf of the Corporation.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-60- day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly --------------- provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control The Indemnitee shall have occurred, in making a determination with respect be presumed to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is be entitled to indemnification under this Agreement if Indemnitee has submitted upon submission of a request for indemnification in accordance with under Section 8(a) of this Agreement5.1, and the Company Corporation shall have the burden of proof to overcome in overcoming that presumption in connection with the making by any person, persons or entity of any reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless the Corporation provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Independent Counsel (or such other person or persons) convinces him by clear and convincing evidence that the presumption should not apply.
(b) If a person, the person or persons or entity empowered or selected under Section 8 Article V of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request by Indemnitee therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or an knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.such
(c) The termination of any Proceeding or of any claimClaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of by itself adversely affect the right rights of Indemnitee to indemnification or create a presumption that Indemnitee did meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not act permitted by applicable law. Indemnitee shall be deemed to have been found liable in good faith and in a manner which respect of any Claim, issue or matter only after he reasonably believed to be in or not opposed to shall have been so adjudged by the best interests Court after exhaustion of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawfulall appeals therefrom.
Appears in 1 contract
Samples: Indemnification Agreement (Pioneer Natural Resources Co)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefortherefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if a majority of Disinterested Directors, the stockholders, or Independent Counsel through a written opinion determines that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; ) and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Tender Loving Care Health Care Services Inc/ Ny)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination Decisionmaker shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement9(a), and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination by the Decisionmaker contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification the Decisionmaker shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable lawApplicable Law; provided, however, that such the sixty (60-) day period may be extended for a reasonable time, not up to exceed an additional 30 thirty (30) days (a total of ninety (90) days, ) if the person, persons or entity making the determination with respect to entitlement to indemnification Decisionmaker in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating theretoin rendering his/its decision; and provided, further, provided further that the foregoing provisions of this Section 9(b10(b) shall not apply if (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination indemnification, the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof of stockholders to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, thereafter or (B) a special meeting of stockholders is called within 15 fifteen days (15) after such receipt for the purpose of making such determination, such meeting is held within 60 sixty (60) days after having been so being called and such determination is made thereat, at such meeting or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement9(b).
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in in, or not opposed to to, the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant, an appraiser or other expert selected with reasonable care by the Company. The provisions of this Section 10(d) shall not be deemed to be exclusive or to limit in any way the circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Renaissance Cosmetics Inc /De/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons attorneys or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company SCI shall have the burden of proof to overcome that presumption in connection with the making by any person, persons attorneys or entity of any determination contrary to that presumption.
(b) If a the person, persons attorneys or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within ninety (90) days after receipt by the Company SCI of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day ninety (90)-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons attorneys or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders Board pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company SCI of the request for such determination the Board of Directors Executive Committee has resolved to submit such determination to the stockholders Board for their consideration at an annual the first regular meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders the Board is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 ninety (90) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company SCI or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, ; or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.receipt
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 one hundred twenty (120) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 one hundred five (105) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 1 contract
Samples: Employment Agreement (Thermo Fisher Scientific Inc.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect Determination, including any Determination made by Independent Counsel pursuant to entitlement to indemnification hereunderSection 7(b) and set forth in an opinion delivered by such Independent Counsel, the person or person, persons or entity Entity making such determination Determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement7(a), and the Company Corporation shall have the burden of proof by clear and convincing evidence to overcome that presumption in connection with the making by any person, persons or entity Entity of any determination Determination contrary to that presumption.
(b) If a the person, persons or entity Entity empowered or selected under Section 8 of this Agreement 7 to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 Determination within sixty (60) days after receipt by the Company Corporation of the request therefortherefore, the requisite determination of entitlement to indemnification Determination shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day sixty (60)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity Entity making the determination with respect to entitlement to indemnification Determination in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification Determination is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company Corporation of the request for such determination Determination, the Board of Directors has resolved to submit such determination Determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination Determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determinationDetermination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination Determination is made thereat, or (ii) if the determination to Determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within 30 days after receipt by the Company of the request therefortherefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if a majority of Disinterested Directors, the stockholders, or Independent Counsel through a written opinion determines that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Hornbeck Offshore Services Inc /La)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Midcoast Energy Resources Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity o making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the then requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereatat such meeting, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereatat such meeting, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnity Agreement (Globenet Communications Group LTD)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, and following the person or persons or entity making such determination procedures in Section 9, as applicable, it shall presume be presumed that the Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled the Indemnitee’s right to indemnification shall not have been made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or convictionsettlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of by itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company orCompany, and with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Healthy Choice Wellness Corp.)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunderindemnification, the person or persons or entity making such the determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a10(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 10 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within 30 days after receipt by the Company of the request thereforrequest, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60the 30-day period may be extended for a reasonable time, not to exceed an additional 30 15 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such the additional time for the obtaining or evaluating of documentation and/or information relating theretoinformation; and provided, further, that the foregoing provisions of this Section 9(b11(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b10(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such the determination the Board of Directors has resolved to submit such the determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereatthere, or (B) a special meeting of stockholders stock holders is called within 15 days after such receipt for the purpose of making such a determination, such the meeting is held for such purpose within 60 days after having been so called and such the determination is made thereatthere, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b10(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter thereinin it, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption be determinative that Indemnitee did not act meet the requirements set forth in good faith and Section 3. Indemnitee shall be deemed to have been found liable in respect of any claim, issue or matter only after Indemnitee shall have been so adjudged by a manner which he reasonably believed to be in or not opposed to the best interests court of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawfulcompetent jurisdiction after exhaustion of all appeals.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, thereat or (B) a special meeting of stockholders shareholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall Reviewing Party shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a personSubject to Section 11(d), persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification if the Reviewing Party shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request thereforthereof, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(a) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not meet any particular standard of conduct, act in good faith and in a manner which he he/she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his his/her conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Endo Pharmaceuticals Holdings Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company Corporation shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, ; or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(aB(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(bB(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the the,purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement:.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere contenders or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingproceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (Staff Builders Inc /De/)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefortherefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (First Aviation Services Inc)
Presumptions and Effect of Certain Proceedings. (a1) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b2) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c3) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(4) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers and directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change The General Counsel of Control shall have occurredthe Company (or if there is no General Counsel, in making a determination with respect to entitlement to indemnification hereunderor if Indemnitee is the General Counsel, the person President of the Company) shall, promptly upon receipt of Indemnitee’s written request for indemnification, advise in writing the Board of Directors or such other person, persons or entity empowered or selected to make the determination as provided in Section 9 that Indemnitee has made such request for indemnification. Upon making such determination request for indemnification, Indemnitee shall presume that Indemnitee is be presumed to be entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, hereunder and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that such presumption.
(b) If a the person, persons or entity so empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination with 60 within forty-five (45) calendar days after receipt by the Company General Counsel of the request thereforCompany (or if there is no General Counsel, or if Indemnitee is the General Counsel, the President of the Company) of such request, a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification (i) a misstatement by Indemnitee of a absent actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6045-day period may be extended for a reasonable period of time, not to exceed an additional 30 thirty (30) calendar days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply (ii)(A) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b9(b) of this Agreement and if (AB)(1) if, within 15 fifteen (15) days after receipt by the General Counsel of the Company (or if there is no General Counsel, or if Indemnitee is the General Counsel, the President of the Company) of the request for such determination determination, the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, thereat or (B2) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, thereat or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding described in Sections 3 or of any claim, issue or matter therein, 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not not, of itself: (except as otherwise expressly provided in this Agreementi) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful; or (ii) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, Agreement and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification (i) a misstatement by Indemnitee of a absent actual and material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (ii)(A) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (AB)(1) if, within 15 fifteen (15) days after receipt by the Company of the request for such determination determination, the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, thereat or (B2) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, thereat or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo no lo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as defined in Section 15), including financial statements, or on information supplied to Indemnitee by the directors, officers or key employees of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (La Jolla Pharmaceutical Co)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; providedPROVIDED, howeverHOWEVER, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and providedPROVIDED, furtherFURTHER, that the foregoing provisions of this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 5 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty(30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-30 day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b5(b) of this Agreement and if (Aif(A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of of' stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (iiiii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere contendre or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of in Control shall have occurred, occurred in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made made, and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders shareholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (BNS Co)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 one hundred twenty (120) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 one hundred five (105) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly provided in this AgreementA greement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.PAGE
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement Agreement, if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to the overcome that presumption in connection with the making by any person, persons person or entity of or any determination contrary to that presumption.
(b) If a person, persons the person or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons person or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating evaluation of documentation and/or information relating thereto; and provided, provided further, that the foregoing provisions of or this Section 9(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.the
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere contender or its equivalent, shall not (except as otherwise expressly provided provide in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b-------- -------
(a) shall not apply (iiii) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15 days after receipt by the Company Corporation of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(cb) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly --------------- provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a written request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-60 day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the Officers and Directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification absent: (i) a misstatement by Indemnitee of a material fact, fact or an omission of a material fact necessary to make Indemniteeindemnitee's statement not materially misleading, misleading in connection with the request for indemnification, ; or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b10(b) shall not apply apply: (iy) if the determination of entitlement to indemnification is to be made by the stockholders shareholders pursuant to Section 8(b9(b) of this Agreement and if if: (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders shareholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, ; or (B) a special meeting of stockholders shareholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, ; or (iiz) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b9(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (World Commerce Online Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) . If a the person, persons or entity empowered or selected under Section 8 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification indemnification, under applicable law; provided, however, that such 60-day sixty (60)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; ) and provided, provided further, that the foregoing provisions of this Section 9(b) 8) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereatthere at, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held within 60 sixty (60) days after having been so so-called and such determination is made thereatthere at, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7) of this Agreement.
(c) . The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingproceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within 30 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or an information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification indemnifica- tion hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a6(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b6(b) of this Agreement and if (A) within 15 fifteen (15) days after receipt by the Company of the request for such determination the Board of Directors has resolved or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers and directors of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
Appears in 1 contract
Samples: Indemnification Agreement (Spectratek Technologies Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreementhereof, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a person, the persons or entity empowered or selected under Section 8 of this Agreement 7 hereof to determine whether Indemnitee is entitled to indemnification shall not have made a determination with 60 within ninety (90) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-ninety (90) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply apply
(i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement hereof and if (A) within 15 thirty (30) days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 thirty (30) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreementhereof.
(c) It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that Indemnitee has not met the standards of conduct that make it permissible under the Act for the Company to indemnify Indemnitee for the amount claimed. Neither the failure of the persons empowered or selected under Section 7 hereof to have made a determination prior to the commencement of such action that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in the Act, nor an actual determination by the persons empowered or selected under Section 7 hereof that Indemnitee had not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(d) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) not, of itself adversely affect the right of Indemnitee to indemnification or itself, create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company orand, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful.
Appears in 1 contract
Samples: Indemnification Agreement (SPSS Inc)
Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a7(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(b) If a the person, persons or entity empowered or selected under Section 8 7 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a such determination with within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 9(b8(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b7(b) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination the Board of Directors has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 120 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 105 days after having been so called and such determination is made thereat, or (ii) if the determination to of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 8(b7(b) of this Agreement.
(c) The termination of any Proceeding action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing or other proceeding whether civil, criminal, administrative or investigative or of any claim, issue or matter therein, therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
Appears in 1 contract
