Common use of Proceedings by or in the Right of the Corporation Clause in Contracts

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, Indemnitee is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s favor. Pursuant to this section 5, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification unless and only to the extent that the court in which such Proceeding shall have been brought or is pending shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee shall be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, if Indemnitee is, was or is a party or is threatened in writing to be made, made a party to any threatened, pending or completed Proceeding brought action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a director of the Corporation’s favor. Pursuant , or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while a director or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as a director of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys' fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to this section 5the fullest extent permitted by law, Indemnitee shall amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be indemnified against Expenses unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of such Proceeding action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, in or not opposed to, to the best interests of the Corporation. Notwithstanding the foregoingCorporation and its stockholders, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists to be liable to the Corporation if applicable law expressly prohibits such indemnification in the performance of Indemnitee's duty to the Corporation and its stockholders unless and only to the extent that the court in which such Proceeding shall have been brought action or proceeding is or was pending shall determine that indemnification against Expenses may nevertheless be made by upon application that, in view of all the Corporation. Without limiting the generality circumstances of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faithcase, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliatedeem proper.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee shall be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, if Indemnitee is, was or is a party or is threatened in writing to be made, made a party to any threatened, pending or completed Proceeding brought action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation’s favor. Pursuant , or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys' fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to this section 5the fullest extent permitted by law, Indemnitee shall amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be indemnified against Expenses unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of such Proceeding action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, in or not opposed to, to the best interests of the Corporation. Notwithstanding the foregoingCorporation and its stockholders, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists to be liable to the Corporation if applicable law expressly prohibits such indemnification in the performance of Indemnitee's duty to the Corporation and its stockholders unless and only to the extent that the court in which such Proceeding shall have been brought action or proceeding is or was pending shall determine that indemnification against Expenses may nevertheless be made by upon application that, in view of all the Corporation. Without limiting the generality circumstances of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faithcase, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliatedeem proper.

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, Section 4.03 if, by reason of his Indemnitee's Corporate Status, Indemnitee was or is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s its favor. Pursuant to this section 5, Indemnitee shall be indemnified against Expenses Expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by Indemnitee or on Indemnitee’s 's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the CorporationGood Faith. Notwithstanding the foregoing, no such indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification Corporation, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such Proceeding shall have been brought or is pending shall determine that indemnification against Expenses may nevertheless be made by determines that, despite the Corporation. Without limiting adjudication of liability but in view of all the generality circumstances of the foregoingcase, the Indemnitee is fairly and reasonably entitled to indemnity for purposes such portion of this section 5the settled amount, Expenses, judgments, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliatefines as such court deems proper.

Proceedings by or in the Right of the Corporation. Without limiting the scope of Section 3, Indemnitee shall be entitled to the rights of indemnification provided in this section 5, Section if, by reason of his Indemnitee’s Corporate Status, Indemnitee is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s its favor. Pursuant to this section 5Section, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, in or not opposed to, to the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification; provided, however, that if applicable law so permits, indemnification unless against Expenses shall nevertheless be made by the Corporation in such event if, and only to the extent that that, the Court of Chancery of the State of Delaware (the “Delaware Court”), or the court in which such Proceeding shall have been brought or is pending pending, shall determine that indemnification against Expenses may nevertheless be made by upon application that, despite the Corporation. Without limiting adjudication of liability but in view of all the generality circumstances of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faithcase, Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as the Delaware Court or such other court shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliatedeem proper.

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, Section 4 if, by reason of his Indemnitee’s Corporate Status, Indemnitee is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s its favor. Pursuant to this section 5Section 4, Indemnitee shall be indemnified and held harmless against Expenses Expenses, liabilities and losses (as well as against any federal, state, local and foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Section 4) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, in or not opposed to, to the best interests of the CorporationCorporation and its stockholders. Notwithstanding the foregoing, no indemnification against such Expenses Expenses, liabilities and losses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification unless is not permitted by Delaware or other applicable law; provided, however, that indemnification against Expenses, liabilities and only losses shall nevertheless be made by the Corporation in such event to the extent that the Court of Chancery of the State of Delaware or the court in which such Proceeding proceeding shall have been brought or is pending pending, shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliatedetermine.

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, Section 5 if, by reason of his or her Corporate Status, Indemnitee he or she is, or is threatened in writing to be made, a party to any threatenedcontemplated, pending pending, or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s favor. Pursuant to this section Section 5, Indemnitee shall be indemnified against Expenses Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee him or her or on Indemnitee’s his or her behalf in connection with any such Proceeding if Indemnitee he or she acted in good faith and in a manner Indemnitee he or she reasonably believed to be in, in or not opposed to, to the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification unless and only to the extent that the Chancery Court of the State of Delaware or the court in which such Proceeding shall have been brought or is pending shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for For purposes of this section Section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on the records or the books of account of the Corporation or an Affiliate, including financial statements, or on information supplied to the Indemnitee by the officers of the Corporation or an Affiliate in the course of their duties, or on the advice of legal counsel for the Corporation or an Affiliate Affiliate, or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, Indemnitee is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s 's favor. Pursuant to this section 5, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s 's behalf in connection with such Proceeding if Indemnitee Indemnitce acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or is pending pending, shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s 's action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. Indemnitee shall be entitled to the rights of indemnification provided in this section 5, if, by reason of his or her Corporate Status, Indemnitee is, or is threatened in writing to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in the Corporation’s favor. Pursuant to this section 5, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law expressly prohibits such indemnification unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or is pending pending, shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. With the approval of a court, Indemnitee shall be entitled to the rights of indemnification provided in this section 5, Section ‎1(b) if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened in writing to be made, a party to or participant in any threatened, pending or completed Proceeding brought by or in the right on behalf of the Corporation to procure a judgment in the Corporation’s favor. Pursuant to this section 5Section ‎1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee the Indemnitee, or on the Indemnitee’s behalf 's behalf, in connection with such Proceeding if the Indemnitee acted honestly and in good faith and in with a manner Indemnitee reasonably believed view to be in, or not opposed to, the best interests of the Corporation. Notwithstanding , and, in the foregoingcase of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Indemnitee had reasonable grounds for believing that the Indemnitee's conduct was lawful; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to have not met the conditions in Section 124(3) of the CBCA. [Comment: Section 124(4) permits indemnification of directors, officers, employees and agents for expenses (which would include legal counsel's fees) in derivative actions and actions by the corporation and for judgments, fines or amounts paid in settlement of such actions, with the approval of a court. However, where the individual does not fulfill the conditions in Section 124(3) (perhaps where the individual is adjudged to be liable to the Corporation if applicable law expressly prohibits corporation), Section 124(4) does not permit indemnification even for expenses. Thus, indemnification for derivative actions and actions by the corporation is significantly more limited than for third-party actions. The rationale for this distinction is that any liability for breach of fiduciary duty in a derivative action and actions by the corporation is to make the corporation (on whose behalf the action was brought) whole for harm it suffered, and the corporation would not receive any benefit by indemnifying an individual against such indemnification unless and only liability. In effect, the corporation would be returning funds to the extent person liable to pay them. As with Section ‎1(a), Section ‎1(b) essentially tracks Section 124(4), except that it makes indemnification mandatory rather than permissible, subject to the court in which such Proceeding shall have been brought or is pending shall determine that indemnification against Expenses may nevertheless be made by the Corporation. Without limiting the generality of the foregoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is based on information supplied to the Indemnitee by legal counsel for the Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliateapproval.