Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceeding. (b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof. (c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following: (1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought; (2) The stockholders of the Company; (3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or (4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected. (d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim. (e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement. (f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 8 contracts
Sources: Indemnification Agreement (Ascential Software Corp), Indemnification Agreement (Ascential Software Corp), Indemnification Agreement (Informix Corp)
Determination of Right to Indemnification. (a) 8.1. To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be, including without limitation Indemnitee’s attorneys’ fees.
(b) 8.2. In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3. The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4. As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5. If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6. Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 7 contracts
Sources: Employment Agreement (Nac Global Technologies, Inc.), Indemnification Agreement (xG TECHNOLOGY, INC.), Indemnification Agreement (NXT-Id, Inc.)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 7 contracts
Sources: Indemnity Agreement (Neonc Technologies Holdings, Inc.), Indemnity Agreement (Neonc Technologies Holdings, Inc.), Indemnification Agreement
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 7 contracts
Sources: Indemnification Agreement (Niku Corp), Indemnification Agreement (Talarian Corp), Indemnification Agreement (O S I Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 5 contracts
Sources: Indemnity Agreement (Oni Systems Corp), Indemnification Agreement (Tsi International Software LTD), Indemnity Agreement (Alladvantage Com Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 5 contracts
Sources: Indemnity Agreement (Dexcom Inc), Separation Agreement (Dexcom Inc), Indemnity Agreement (Nexsan Corp)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 4 contracts
Sources: Indemnity Agreement (Praetorian Property, Inc.), Indemnity Agreement (Praetorian Property, Inc.), Indemnification Agreement (Berkshire Homes, Inc.)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 4 contracts
Sources: Indemnity Agreement (InfoSearch Media, Inc.), Indemnification Agreement (InfoSearch Media, Inc.), Indemnity Agreement (Mac Worldwide Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 4 contracts
Sources: Indemnification Agreement (Rubicon Financial Inc), Indemnity Agreement (Verisign Inc/Ca), Indemnification Agreement (Rubicon Financial Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of Any indemnification under this Agreement or in the defense of any claim, issue or matter described therein, shall be made by the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal unless a determination is made that indemnification of such Proceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be heard from among the following:
made (1i) A quorum by a majority vote of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
Proceeding in question (2“disinterested directors”), even if less than a quorum, (ii) The by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel outstanding shares of three (3) arbitrators, one (1) stock of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not all classes entitled to indemnificationvote on the matter, and the Company shall act in the utmost good faith to assure the Indemnitee voting as a complete opportunity to defend against such claim.
single class, (eiv) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pendingindependent legal counsel, or any other (v) by a court of competent jurisdiction; provided, for however, that if a Change in Control has occurred, the purpose of enforcing the determination with respect to Indemnitee's ’s right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing not be unreasonably delayed, conditioned or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any withheld). Such counsel, among other Proceeding between things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the Indemnitee involving the interpretation or enforcement reasonable fees of the rights independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of the Indemnitee under or relating to this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faithits engagement pursuant hereto.
Appears in 4 contracts
Sources: Indemnification Agreement (Roundy's, Inc.), Indemnification Agreement (Roundy's, Inc.), Indemnification Agreement (Roundy's, Inc.)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1i) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The stockholders of the Company;
(3iii) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4iv) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 4 contracts
Sources: Indemnification Agreement (Blum Holdings, Inc.), Indemnification & Liability (Blum Holdings, Inc.), Indemnification & Liability (Blum Holdings, Inc.)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) ), 4(b), or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or.
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Employment Agreement (Cadence Design Systems Inc), Employment Agreement (Cadence Design Systems Inc), Indemnity Agreement (Cadence Design Systems Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Nevada.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court State Courts of Chancery the State of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdictionNevada, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Indemnification Agreement (Gopher Protocol Inc.), Indemnification Agreement (Gopher Protocol Inc.), Indemnification Agreement (Gopher Protocol Inc.)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, EXCEPT that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, PROVIDED that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Indemnity Agreement (Adforce Inc), Indemnity Agreement (Silicon Image Inc), Indemnity Agreement (Gric Communications Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Employment Agreement (Homestore Com Inc), Employment Agreement (Homestore Com Inc), Employment Agreement (Homestore Com Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delawarea Texas District Court, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Indemnity Agreement (Indoor Harvest Corp), Indemnity Agreement (Indoor Harvest Corp), Indemnity Agreement (Indoor Harvest Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Indemnification Agreement (Avalon Globocare Corp.), Indemnification Agreement (Ipsidy Inc.), Indemnification Agreement (ID Global Solutions Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee Indemnitee, and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed in Section 8(c) 8.3 hereof selected by the Indemnitee determines that the Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8.3 hereof selected by the Indemnitee determines that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of determining whether the Indemnitee is entitled to indemnification and enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 3 contracts
Sources: Indemnification & Liability (Interwoven Inc), Indemnity Agreement (Concur Technologies Inc), Indemnification Agreement (Snowball Com Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) Any court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court court having jurisdiction of Chancery of Delawaresubject matter and the parties, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Gas & Oil Technology Inc), Indemnity Agreement (Netscreen Technologies Inc)
Determination of Right to Indemnification. (a) 7.1. To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be, including without limitation Indemnitee’s attorneys’ fees.
(b) 7.2. In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 7.3. The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 7.4. As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 7.5. If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 7.6. Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Separation Agreement (Aftersoft Group), Separation Agreement (Aftersoft Group)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Dexcom Inc), Indemnity Agreement (Diamond Foods Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in the defense of any Proceeding proceeding referred to in Section 4(a), 4(b), 4(c) or 4(b4(d) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him Indemnitee in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In Indemnitee shall be entitled to select the event that Section 8(a) is inapplicableforum for determining, as described below, the validity of any claim by the Company that Indemnitee is not entitled to indemnification hereunder, which forum shall also indemnify the determine that Indemnitee unless, and only is entitled to the extent that, such indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to a forum listed in Section 8(c) below entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Sections Section 4 or 9 hereof and 10 hereof.
(cii) the requirements of Section 8(a) have not been met. The forum shall determine that Indemnitee is entitled to enforce a claim for advancement of expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required undertaking to the Company. Indemnitee shall be entitled to select the forum in which from the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the followingfollowing list:
(1i) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The the stockholders of the Company;
(3iii) Legal legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4iv) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(dc) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c8(b) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum, in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(ed) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled Any right to indemnification with respect or advances granted by this Agreement to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions be enforceable by or on behalf of Section 18 hereof, to apply to Indemnitee in the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, if (i) the claim for the purpose indemnification or advances is denied, in whole or in part, or (ii) no disposition of enforcing the Indemnitee's right such claim is made within 90 days of request therefor. Indemnitee shall be entitled to indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Section 4 or 9 hereof and (ii) the requirements of Section 8(a) have not been met. Indemnitee shall be entitled to enforce a claim for expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required undertaking to the Company. Neither the failure of the Company (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Indemnitee is proper in the circumstances nor an actual determination by the Company (including its Board of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that the Indemnitee is not entitled to indemnification under this AgreementAgreement or otherwise.
(fe) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement, unless a court of competent jurisdiction finds that each of the claims and/or or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 2 contracts
Sources: Indemnity Agreement (Bristow Group Inc), Indemnity Agreement (Bristow Group Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnity Agreement (Dovebid Inc), Indemnity Agreement (Dovebid Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
, provided, however, that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company: (1a) A a quorum of the Board of Directors consisting of directors who are not parties to the proceeding for which indemnification is being sought;
; (2b) The the stockholders of the Company;
; (3c) Legal independent legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the BoardBoard of Directors, which counsel shall make such determination in a written opinion; or
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or (e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the claim for indemnification by the Indemnitee is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided, however, that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement, unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnity Agreement (Handspring Inc), Indemnity Agreement (Handspring Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the courts of the State of Nevada or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court courts of Chancery the State of DelawareNevada, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Ethanex Energy, Inc.), Indemnification Agreement (Foothills Resources Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) Any court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court court having jurisdiction of Chancery of Delaware, subject matter and the court in which that Proceeding is or was pending, or any other court of competent jurisdictionparties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnity Agreement (Alibris Inc), Indemnity Agreement (Alibris Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement 4 hereof or in the defense of any claim, issue or matter described thereintherein or in Section 3 hereof, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceeding.
(b) In . If the event that Section 8(a) is inapplicableIndemnitee has not been successful on the merits or otherwise in any such defense, the Company also shall also indemnify the Indemnitee unless, and only to the extent that, the Indemnitee has not met the applicable standard of conduct under the Corporation Act as it now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment).
(b) The determination as to whether the Indemnitee is entitled to indemnification shall prove be made as follows: (1) if requested by clear and convincing evidence to the Indemnitee, by Independent Legal Counsel selected by the Indemnitee with the consent of the Company (which consent shall not be unreasonably withheld) or (2) if no request is made by the Indemnitee for a forum listed in Section 8(cdetermination by Independent Legal Counsel (i) below that indemnification by a quorum or committee of the Board of Directors of the Company consisting of Disinterested Directors or (ii) if such quorum or committee is not required pursuant to Sections 4 and 10 hereofobtainable or, even if obtainable, if a quorum or committee of Disinterested Directors so directs, by Independent Legal Counsel in a written opinion.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, jurisdiction for the purpose of enforcing the Indemnitee's right to indemnification or the advance payment of Expenses pursuant to this Agreement, the Articles, the Bylaws or Article 2.02-1 of the Corporation Act. The burden of proof shall be on the Company in any such suit to demonstrate that the Indemnitee is not entitled to indemnification or advance payment of Expenses. The Indemnitee's Expenses incurred in successfully establishing his right to indemnification or advancement of Expenses, in whole or in part, in any such action (or settlement thereof) shall be paid by the Company.
(fd) Notwithstanding any other provision anything in this Agreement Section 3 or Section 4 hereof to the contrary, the Company shall indemnify the Indemnitee against all not be liable under this Agreement to make any indemnity payment or advancement of Expenses incurred by the Indemnitee in connection with any hearing Proceeding (i) to the extent that payment is actually made, within the time frame contemplated by this Agreement, to or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights on behalf of the Indemnitee under an insurance policy, except in respect of any amount in excess of the limits of liability of such policy or any applicable deductible under such policy, (ii) to the extent that payment has been or will, within the time frame contemplated by this Agreement, be made to the Indemnitee by the Company otherwise than pursuant to this Agreement unless or (iii) to the extent that there was a final adjudication by a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to indemnification under the Corporation Act as it now exists or may hereafter be amended (but, in the case of any such Proceeding was frivolous or made in bad faithamendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment).
Appears in 2 contracts
Sources: Indemnification Agreement (Southern Bottled Water Co Inc), Indemnification Agreement (Southern Bottled Water Co Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the courts of the State of Nevada or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court courts of Chancery the State of DelawareNevada, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Goldstrike Inc), Indemnification Agreement (High Tide Ventures, Inc.)
Determination of Right to Indemnification. (a) To Unless Indemnitee is not entitled to indemnification as a result of an exclusion set forth in Section 10 below, the extent Company shall indemnify the Indemnitee against Expenses and Other Liabilities paid or incurred by Indemnitee in connection with any Proceeding referred to in Section 3 of this Agreement or any other Proceeding arising out of an Indemnifiable Event, including in the event that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement 3 above or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defenseherein, or appeal consistent with Section 145(c) of such Proceedingthe GCL.
(b) In the event that Section 8(a9(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only if he or she has not failed to meet the extent thatapplicable standard of conduct for indemnification. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the Company shall to prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification Indemnitee is not required pursuant to Sections 4 and 10 hereofso entitled.
(c) The Company’s obligations to indemnify Indemnitee under this Agreement shall be satisfied fully no later than thirty (30) days following the receipt by the Company of written notice by or on behalf of Indemnitee that Indemnitee is so entitled.
(d) In the event that the Company fails to satisfy its obligations within the time frame set forth in Section 9(c) above, the Indemnitee, in his or her sole discretion, shall be entitled to select the forum in which determination of whether or not Indemnitee has met the validity applicable standard of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification conduct and such election will be heard made from among the following:
(1) A quorum Those members of the Board consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought, even though less than a quorum;
(2) The stockholders of the Company;
(3) Legal Independent legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which approval may not be unreasonably withheld, which counsel shall make such determination in a written opinion; or
(4) A In the event that Indemnitee is neither an officer nor a director of the Company at the time that Indemnitee is selecting the forum, a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected. The selected forum shall be referred to herein as the “Reviewing Party”.
(de) As soon as practicable, and in no event later than thirty (30) days after receipt by the Company of written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c9(d) above, there the Company and Indemnitee shall each submit to the Reviewing Party such information as they believe is appropriate for the Reviewing Party to consider. The Reviewing Party shall arrive at its decision within a reasonable period of time following the receipt of all such information from the Company and Indemnitee, but in no event later than sixty (60) days following the receipt of all such information. Notwithstanding the foregoing, if additional information is requested by the Reviewing Party in order to be able to make a more informed decision, the Reviewing Party shall arrive at its decision within a reasonable period of time following the receipt of such additional information, but in no event later than thirty (30) days following the receipt of such additional information. All Expenses associated with the process set forth in this Section 9(e), including but not limited to the Expenses of the Reviewing Party, shall be submitted to such forum as paid by the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claimCompany.
(ef) In the event that a determination is not made within the time prescribed in Section 9(e), the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) misrepresentation by Indemnitee of a material fact in the request for indemnification or (ii) a final judicial determination that all or any part of such indemnification is expressly prohibited by law.
(g) Notwithstanding a determination by any forum Reviewing Party listed in Section 8(c9(d) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of DelawareChancery, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(fh) Notwithstanding any other provision in this Agreement To the extent deemed appropriate by the court or the Reviewing Party, interest shall be paid by the Company at a reasonable interest rate (which shall generally be at the interest rate that the Company is then paying or would have to pay for unsecured loans) for amounts that the contrary, Company indemnifies or is obliged to indemnify the Indemnitee for the period commencing with the date on which Indemnitee requested indemnification (or advancement of Expenses) and ending with the date on which such payment is made to Indemnitee by the Company.
(i) The Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 9 involving the Indemnitee and against all Expenses and Other Liabilities incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faithfaith or it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Company’s Bylaws or the GCL with respect to the underlying claim or claims. Such Expenses shall be paid to Indemnitee or directly to a third party designated by Indemnitee within ten (10) days of a written request by Indemnitee to the Company.
(j) If a determination is made or deemed to be made pursuant to the terms of this Section 9 that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration in the absence of (i) a misrepresentation of a material fact by Indemnitee or (ii) a final judicial determination that all or any part of such indemnification is expressly prohibited by law.
(k) The Company and Indemnitee agree that they shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding and enforceable. The Company and Indemnitee further agree to stipulate in any such court that the Company and Indemnitee are bound by all of the provisions of this Agreement and are precluded from making any assertion to the contrary.
Appears in 2 contracts
Sources: Indemnity Agreement (Hanmi Financial Corp), Indemnity Agreement (Hanmi Financial Corp)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Chaparral Energy, Inc.), Indemnity Agreement (Chaparral Energy, Inc.)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with therewith to the investigation, defense, or appeal of such Proceedingextent permitted by law.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Upon each submission of a written notice by Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that for indemnification is not required pursuant to Sections 4 and 10 hereofSection 7(a) above, a determination with respect to Indemnitee's entitlement thereto because he or she has met all the applicable standards set forth in this Agreement shall be made in accordance with this Section 8.
(c) The Indemnitee shall be entitled to select the forum in which the validity decision maker or decision making body who will determine, on behalf of the Company, the Indemnitee's claim under Section 8(b) hereof that the Indemnitee is not entitled entitlement to indemnification will be heard from among the following:
(1) A quorum All of the members of the Board consisting of directors Directors who are not parties to or participants in the proceeding for which indemnification is being sought, even though less than a quorum, or a committee of such directors designated by majority vote of such directors, even though less than a quorum;
(2) The stockholders of the Company;; or
(3) Legal Independent legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum decision maker pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, selected decision maker its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum decision maker listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of the State of Delaware, the court in which that the Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) Notwithstanding In any other provision suit brought by Indemnitee seeking to enforce a right to indemnification hereunder (but not a suit brought by Indemnitee seeking to enforce a right to an advancement of expenses hereunder), it shall be a defense that Indemnitee has not met any applicable standard for indemnification under applicable law. With respect to any suit brought by Indemnitee seeking to enforce a right to indemnification or right to advancement of expenses hereunder or any suit brought by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), neither (i) the failure of the Company to have made a determination prior to commencement of such suit that indemnification of such person is proper in the circumstances because such person has met the applicable standards of conduct under applicable law, nor (ii) an actual determination by the Company that such person has not met such applicable standards of conduct, shall create a presumption that such person has not met the applicable standards of conduct or, in a case brought by such person seeking to enforce a right to indemnification, be a defense to such suit.
(g) In any suit brought by Indemnitee seeking to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), the burden shall be on the Company to prove that the Indemnitee is not entitled to be indemnified, or to such an advancement of expenses, under this Agreement to the contrary, the or otherwise.
(h) The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless so long as a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous entitled to indemnification or made advancement of expenses, in bad faithwhole or in part.
Appears in 2 contracts
Sources: Indemnification Agreement (ACA Capital Holdings Inc), Indemnity Agreement (ACA Capital Holdings Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section Sections 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee pursuant to the terms hereof unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum majority vote of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought, even though less than a quorum;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's Indemnitor’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any a forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this Agreement. In any such proceeding pursuant to this Section 8(e), the Indemnitee shall be presumed to be entitled to indemnification under this Agreement, the Company shall have the burden of proving the Indemnitee is not entitled to indemnification and the Company may not refer to or introduce evidence of any determination pursuant to Section 8(c) adverse to the Indemnitee for any purpose. If a determination is made that the Indemnitee is entitled to indemnification pursuant to Section 8(c), the Company shall be bound by such determination in any proceeding commenced pursuant to this Section 8(e), absent (i) a misstatement by the Indemnitee of a material fact or an omission of a material fact necessary to make the Indemnitee’s statements in connection with the request for indemnification not materially misleading or (ii) a prohibition of such indemnification under law. The Company shall be precluded from asserting in any proceeding commenced pursuant to this Section 8(e) that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such proceeding that the Company is bound by all the provisions of this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, to the fullest extent permitted by law (i) the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and proceeding by the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless or the establishment or enforcement of a court of competent jurisdiction finds that each of right to indemnification under the claims and/or defenses of Certificate, the Bylaws, D&O Insurance, or any statute or law, including Section 145, and (ii) the Company shall advance such expenses to the Indemnitee as provided in Section 6.
(g) All payments of expenses, including any expense advance, and other amounts by the Company to the Indemnitee pursuant to this Agreement shall be made as soon as practicable after a written request or demand therefor by the Indemnitee is presented to the Company, but in no event later than thirty (30) days after (i) such Proceeding was frivolous request or demand is presented or (ii) such later date as a determination of entitlement to indemnification is made in bad faithaccordance with Section 8(c), if applicable; provided, that an expense advance shall be made within the time provided in Section 6.
Appears in 2 contracts
Sources: Indemnification Agreement (Forestar Group Inc.), Indemnification Agreement (Forestar Group Inc.)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 2 contracts
Sources: Indemnification Agreement (Bannix Acquisition Corp.), Indemnification Agreement (Planet Payment Inc)
Determination of Right to Indemnification. (a) To the extent the that Indemnitee has shall have been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) Indemnifiable Claim or 4(b) of this Agreement any portion thereof or in the defense of any claim, issue or matter described therein, including without limitation dismissal without prejudice, Indemnitee shall be indemnified against Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim or portion thereof in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required with respect thereto.
(b) To the extent that the provisions of Section 8(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under Texas law that is a legally required condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim (a “Standard of Conduct Determination”) shall be made as follows: (i) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (ii) if such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a majority vote of all Disinterested Directors, or (iii) if Indemnitee so requests, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or persons, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. To the fullest extent required or permitted by the laws of the State of Texas, the Company shall indemnify the and hold harmless Indemnitee against Expenses actually and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request, any and reasonably all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by him Indemnitee in connection so cooperating with the investigation, defense, person or appeal persons making such Standard of such Proceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereofConduct Determination.
(c) The Company shall use its reasonable best efforts to cause any Standard of Conduct Determination required under Section 8(b) to be made as promptly as practicable. If (i) the person or persons empowered or selected under Section 8 to make the Standard of Conduct Determination shall not have made a determination within 30 days after the later of (A) receipt by the Company of written notice from Indemnitee advising the Company of the final disposition of the applicable Indemnifiable Claim (the date of such receipt being the “Notification Date”) and (B) the selection of an Independent Counsel, if such determination is to be made by Independent Counsel, and (ii) Indemnitee shall have fulfilled his obligations set forth in the second sentence of Section 8(b), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided that such 30-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person or persons making such determination in good faith requires such additional time for the obtaining or evaluation or documentation and/or information relating thereto.
(d) If (i) Indemnitee shall be entitled to select the forum in which the validity indemnification hereunder against any Indemnifiable Losses pursuant to Section 8(a), (ii) no determination of the Company's claim whether Indemnitee has satisfied any applicable standard of conduct under Texas law is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section 8(b) hereof that the Indemnitee or (c) to have satisfied any applicable standard of conduct under Texas law which is not entitled a legally required condition precedent to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the IndemniteeIndemnitee hereunder against any Indemnifiable Losses, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and then the Company shall act pay to Indemnitee, within five business days after the later of (x) the Notification Date in respect of the utmost good faith Indemnifiable Claim or portion thereof to assure which such Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted and (y) the Indemnitee a complete opportunity earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to defend against the amount of such claimIndemnifiable Losses.
(e) Notwithstanding If a determination Standard of Conduct Determination is to be made by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification Independent Counsel pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrarySection 7(b)(i), the Company shall indemnify give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. Indemnitee against all Expenses incurred by may, within five business days after receiving written notice of selection from the Indemnitee Company, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in connection the definition of “Independent Counsel” in Section 1(f), and the objection shall set forth with any hearing particularity the factual basis of such assertion. Absent a proper and timely objection, the person or Proceeding firm so selected shall act as Independent Counsel. If such written objection is properly and timely made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If no Independent Counsel that is permitted under the foregoing provisions of this Section 8 involving 7(e) to make the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between Standard of Conduct Determination shall have been selected within 30 days after the Company and gives its initial notice pursuant to the first sentence of this Section 7(e), Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a may petition any court of competent jurisdiction finds that each for resolution of any objection which shall have been made by Indemnitee to the selection of Independent Counsel and/or for the appointment as Independent Counsel of a person or firm selected by the Court or by such other person as the Court shall designate, and the person or firm with respect to whom all objections are so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay all of the claims and/or defenses reasonable fees and expenses of the Indemnitee Independent Counsel incurred in any such Proceeding was frivolous or made in bad faithconnection with the Independent Counsel’s determination pursuant to Section 7(b).
Appears in 2 contracts
Sources: Director Indemnification Agreement (KMG Chemicals Inc), Director Indemnification Agreement (Exco Resources Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceeding.
(b) In the event that Section 8(a) IONA PLC and IONA Inc. contend that indemnification is inapplicablenot required hereunder with respect to any Indemnifiable Amounts, Indemnitee shall be entitled to select one of the Company following forums to hear IONA PLC’s and IONA Inc.’s claim that indemnification is not required, and IONA PLC and IONA Inc. shall also indemnify the Indemnitee for all Indemnifiable Amounts unless, and only to the extent that, the Company shall prove forum selected by Indemnitee as described below proves by clear and convincing evidence to a forum listed in Section 8(c) below that such indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the followingby this Agreement or otherwise:
(1i) A quorum of the IONA PLC’s Board consisting of directors who Directors that are not parties to the proceeding Proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3ii) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinionIONA PLC’s Board of Directors; or
(4iii) A panel of three (3) arbitrators, one (1) of whom is selected by IONA PLC and IONA Inc., one of whom is selected by Indemnitee and the third of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(da) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) aboveforum, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company IONA PLC and IONA Inc. shall act in the utmost good faith to assure ensure the Indemnitee has a complete reasonable opportunity to defend against such claim.
(e) . Notwithstanding a determination by any the selected forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, jurisdiction for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(fb) Notwithstanding any other provision in of this Agreement to the contrary, the Company Indemnifiable Amounts shall indemnify the Indemnitee against include all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under pursuant to this Section 8 11 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) Any court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision is executed within 60 days after the final decision of such forum is rendered. If the forum selected in this Agreement to the contraryaccordance with Section 8.3 hereof is a court, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of then the rights of the Company or the Indemnitee under this Agreement unless a to appeal any decision of such court of competent jurisdiction finds that each shall be governed by the applicable laws and rules governing appeals of the claims and/or defenses decision of the Indemnitee in any such Proceeding was frivolous or made in bad faithcourt.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Employment Agreement (Intuit Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire Proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3b) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4c) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.; or
(d) A Court of Competent jurisdiction.
8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdictionDelaware courts, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. 9.1 In the event the Company and Indemnitee have a dispute about interpreting this Agreement, a forum listed in Section 9.2 shall determine below if the Indemnitee is entitled to such indemnification. The forum listed in Section 9.2 determining whether the Indemnitee is entitled to indemnification shall presume that Indemnitee is entitled to indemnification under this Agreement. The Company shall have the burden of proving that the Indemnitee is not entitled to indemnification under this Agreement.
(a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, Under no circumstances shall the Company shall indemnify be allowed to challenge the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal Advancement of such ProceedingExpenses.
(b) In the event that Section 8(a) is inapplicable, the The Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in advance expenses for any dispute under Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof9.1.
(c) Neither the failure of the Company (including its board of directors or independent legal counsel) to have made a determination prior to the commencement of such action that Indemnitee is not entitled to indemnification under this Agreement, nor an actual determination by the Company (including its board of directors or independent legal counsel) that Indemnitee is not entitled to indemnification under this Agreement, shall be a defense to the action or create a presumption that Indemnitee is not entitled to indemnification under this Agreement.
9.2 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 9.1 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The applicable state court of the State of Nevada.
(d) 9.3 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 9.2 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification.
9.4 If the forum selected in accordance with Section 9.2 hereof is not a court, and then after the final decision of such forum is rendered, the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other state court of competent jurisdictionthe State of Nevada, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 9.2 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 9.5 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify and advance expenses to the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 9 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless Agreement. No dispute under Section 9 shall hold up the Company’s prompt payment of any indemnification obligation under this Agreement, subject to the Indemnitee reimbursing the Company in the event that it prevails (pursuant to a court of competent jurisdiction finds that each final non-appealable judgment) in its interpretation of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faithAgreement.
Appears in 1 contract
Determination of Right to Indemnification.
(a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereof.entitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following::
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected..
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim..
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement..
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him the Indemnitee in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unlessunless the Indemnitee has not met the applicable standard of conduct required under this Agreement or the Law to entitle the Indemnitee to such indemnification.
8.3 In making any determination with respect to the Indemnitee’s entitlement to indemnification under this Agreement, it shall be presumed that the Indemnitee is entitled to indemnification under this Agreement, and only to the extent that, the Company shall prove by clear and convincing evidence have the burden of proof to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereofovercome such presumption.
(c) 8.4 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled such Indemnitee’s entitlement to indemnification will be heard from among the following:
(1a) A quorum majority vote of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought, even if less than a quorum;
(2c) The stockholders of If there are no such directors, or if such directors so direct, by independent legal counsel (the Company;
(3“Independent Counsel”) Legal counsel selected by the Indemnitee, and reasonably approved by in a written opinion addressed to the Board, a copy of which counsel shall make such determination in a written opinionbe delivered to Indemnitee; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnity Agreement (Sinda Ltd.)
Determination of Right to Indemnification. (ai) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to Any indemnification and advances provided for in Section 4(a1 and this Section 3 shall be made no later than twenty (20) or 4(b) days after receipt of this Agreement or in the defense written request of any claimIndemnitee; provided, issue or matter described thereinhowever, that the Company shall not be required to indemnify the Indemnitee against Expenses actually if it shall institute a proceeding pursuant to subsections (ii) and reasonably incurred by him in connection with the investigation(iii) hereof and, defensepursuant to such proceeding, or appeal of such Proceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct which makes it permissible under applicable law for the Company to a forum listed in Section 8(c) below that provide indemnification is not required for the amount claimed. Indemnitee shall be entitled to receive interim payments of expenses pursuant to Sections 4 Section 3(a) unless and 10 hereofuntil a determination of entitlement is finally adjudicated.
(cii) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the shareholders of the Company only with the approval of the Company:
(1A) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2B) The stockholders shareholders of the Company;
(3C) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4D) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(E) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(diii) As soon as practicablepractical, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c(ii) above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(eiv) Notwithstanding a determination by any If the forum listed selected in accordance with Section 8(c(ii) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after a final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court Court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right to indemnification pursuant to this Agreement.
is executed within sixty (f60) Notwithstanding any other provision days after the final decision of such forum is rendered. If the forum selected in this Agreement to the contraryaccordance with Section (ii) hereof is a court, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of then the rights of the Company or the Indemnitee under this Agreement unless a to appeal any decision of such court of competent jurisdiction finds that each shall be governed by the applicable laws and rules governing appeals of the claims and/or defenses decision of such court.
(v) 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 or other enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company or other enterprise in any such Proceeding was frivolous the course of their duties, or made in bad faith.on the advice of legal counsel for the Company or other enterprise, or on
Appears in 1 contract
Determination of Right to Indemnification. (a) To Director will be presumed to be entitled to indemnification under this Agreement and will receive such indemnification, subject to paragraph 6.4(b) below, irrespective of whether the extent Covered Matter involves allegations of intentional misconduct, alleged violations of Section 16(b) of the Indemnitee has been successful on the merits Securities Exchange Act of 1934, alleged violations of Section 10(b) of Securities Exchange Act of 1934 (including Rule 10b-5 thereunder), breach of Director’s fiduciary duties (including duties of loyalty or otherwise in defense of any Proceeding referred to in Section 4(acare) or 4(b) of this Agreement or in the defense of any other claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceeding.
(b) In If, in the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only opinion of counsel to the extent thatCompany, applicable law permits indemnification in a Covered Matter only as authorized in the Company shall prove by clear and convincing evidence to specific case upon a forum listed in Section 8(c) below determination that indemnification is not required pursuant proper in the circumstances because Director has met a standard of conduct established by applicable law, and upon an evaluation of Indemnification Amounts to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select paid in connection with such Covered Matter, the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification following will be heard from among the followingapply:
(1) A the Company will give Director notice that a determination and evaluation will be made under this paragraph 6.4(b); such notice will be given immediately after receipt of counsel’s opinion that such a determination and evaluations necessary and will include a copy of such opinion.
(2) Such determination and evaluation will be made in good faith, as follows:
(A) by a majority vote of a quorum of the Company’s Board consisting of directors Directors who are not parties or threatened to be made parties to the proceeding for which indemnification Covered Matter in question (“Disinterested Directors”) or, if such a quorum is being sought;not obtainable, by a majority vote of a committee of Disinterested Directors who are selected by the Board; or
(2B) The stockholders by an attorney or firm of attorneys, having no previous relationship with the Company or Director, which is selected by the Company and Director; or
(C) by all independent directors of the Company;Company who are not parties or threatened to be made parties to the Covered Matter.
(3) Legal Director will be entitled to a hearing before the entire Board of Directors of the Company and any other person or persons making the determination and evaluation under clause (2) above. Director will be entitled to be represented by counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make at such determination in a written opinion; orhearing.
(4) A panel The cost of three a determination and evaluation under this paragraph 6.4(b) (including attorneys’ fees and other expenses incurred by Director in preparing for and attending the hearing contemplated by clause (3) arbitrators, one (1above and otherwise in connection with the determination and evaluation under this paragraph 6.4(b)) of whom is selected will be borne by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d5) As soon The determination will be made as practicable, and in no event later than thirty (30) days promptly as possible after written notice final adjudication of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claimCovered Matter.
(e6) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled Director will be presumed to indemnification with respect to a specific Proceeding, have met the Indemnitee shall have the right, subject to the provisions required standard of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding conduct under this Section 8 involving 6.4(b) unless it is clearly demonstrated to the Indemnitee and against all Expenses incurred by determining body that Director had not met the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement required standard of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faithconduct.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) Sections 3(a), 3(b), or 4(b3(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him him/her in connection with the investigation, defense, or appeal of such Proceeding.
(b) In the event that Section 8(a7(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b7(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders shareholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c7(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith faith, to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c7(c) hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific Proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 7(c) hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 7 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Separation Agreement (Thoratec Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the VERITAS Software Corporation Indemnity Agreement investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right to indemnification pursuant to this Agreement.
is executed within sixty (f60) Notwithstanding any other provision days after the final decision of such forum is rendered. If the forum selected in this Agreement to the contraryaccordance with Section 8.3 hereof is a court, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of then the rights of the Company or the Indemnitee under this Agreement unless a to appeal any decision of such court of competent jurisdiction finds that each shall be governed by the applicable laws and rules governing appeals of the claims and/or defenses decision of the Indemnitee in any such Proceeding was frivolous or made in bad faithcourt.
Appears in 1 contract
Determination of Right to Indemnification. (a) To Notwithstanding any other provision of this Agreement, to the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section Sections 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company Corporation shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company Corporation shall also indemnify the Indemnitee unless, and only to the extent that, the Company Corporation shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select from among the forum in following the forums which will hear and decide the validity of the Company's Corporation’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the followingindemnification:
(1) A majority vote of a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders If such a quorum of the Company;
(3) Legal directors is not obtainable, independent legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(3) Approval of the shareholders (as defined in Section 153 of the Code), with any shares owned by Indemnitee not being entitled to vote thereon; or
(4) A panel of three (3) arbitrators, one (1) of whom The court in which the proceeding is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selectedor was pending.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Corporation shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company Corporation shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim. In any such proceeding pursuant to this Section 8, the termination by judgment, order, settlement, conviction, or upon a plea of Nolo Contendere or its equivalent, of any action or proceeding for which Indemnitee is seeking indemnification shall not, of itself, create a presumption (i) that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in the best interests or the Corporation, or (ii) with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company Corporation shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnification Agreement (Superior Industries International Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the Indemnity Agreement investigation, defense, defense or appeal of such Proceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire Proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Nevada or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delawaredistrict court in Nevada, the court in which that the Proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnity Agreement (Zagg INC)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him Indemnitee in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him [him][her] in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only unless the Indemnitee has not met the applicable standard of conduct required to entitle the extent that, the Company shall prove by clear and convincing evidence Indemnitee to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereofsuch indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled such Indemnitee’s entitlement to indemnification will be heard from among the following, except that the Indemnitee may select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum majority vote of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought, even if less than a quorum;
(2b) The stockholders A committee of the Companysuch directors designated by majority vote of such directors, even if less than a quorum;
(3c) Legal If there are no such directors, or if such directors so direct, by independent legal counsel selected by (the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination “Independent Counsel”) in a written opinion; or
(4d) A panel The stockholders of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable8.4 The Indemnitee shall select the Independent Counsel, who shall be reasonably satisfactory to the Company. The Company shall pay the reasonable fees and in no event later than thirty (30) days after written notice expenses of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claimIndependent Counsel.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) 8.5 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or and not made in bad good faith.
Appears in 1 contract
Sources: Indemnity Agreement (Sunshine Silver Mining & Refining Corp)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a3.4(a) or 4(b3.4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) In the event that Section 8(a3.6(a) is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c3.6(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b3.6(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1i) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The stockholders of the Company;
(3iii) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4iv) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(v) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c3.6(c) above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed selected in accordance with Section 8(c3.c(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 3.6 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 3 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Nevada.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdictionNevada, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee Indemnitee, and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed in Section 8(c) 8.3 hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8.3 hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of determining whether Indemnitee is entitled to indemnification and enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.the
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The District Court of Nevada or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the District Court of Chancery of DelawareNevada, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall Centaur Pharmaceuticals, Inc. Indemnification Agreement prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Centaur Pharmaceuticals, Inc. Indemnification Agreement Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnification Agreement (Centaur Pharmaceuticals Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section subsections 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section Subsection 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the IndemniteeIndemnitor's choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any and forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnity Agreement (Maxtor Corp)
Determination of Right to Indemnification. (a) To 8.1 Without in any way limiting the provisions of Section 4.1 or 4.2 of this Agreement, to the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) In 8.2 Without in any way limiting the provisions of Section 4.1 or 4.2 of this Agreement, in the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnity Agreement (Formfactor Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) Any court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee Indemnitee, and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably reasonable request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed in Section 8(c) 8.3 hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8.3 hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of determining whether Indemnitee is entitled to indemnification and enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses defense of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Any indemnification under Section 4(a) or 4(b) 4 of this Agreement or (unless ordered by a court) shall be made by the Company only as authorized in the defense specific case unless a determination shall be made that indemnification of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him is not proper in connection with the investigation, defense, or appeal circumstances because he has not met the applicable standard of such Proceedingconduct set forth in said Section 4.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee he is not entitled to indemnification will be heard from among the following, which forums shall determine that the Indemnitee is entitled to such indemnification unless the Company shall prove by clear and convincing evidence that: (i) the Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to such Indemnification or that Indemnification is otherwise not required pursuant to Section 11 hereof, and (ii) the requirements of Section 5 have not been met:
(1) A majority vote of a quorum of the Company's Board of Directors consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought;
(2) By independent legal counsel in a written opinion;
(3) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitratorsarbritators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(dc) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c10(b) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its any claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(ed) Notwithstanding a determination by any forum listed in Section 8(c10(b) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement. Such court shall find that the Indemnitee is entitled to indemnification unless the Company shall prove by clear and convincing evidence that (i) the Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Section 11 hereof, and (ii) the requirements of Section 10(a) have not been met.
(fe) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 11 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceeding.proceeding, or such claim, issue or matter, as the case may be. Silicon Image, Inc. Indemnity Agreement
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, EXCEPT that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) A court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, PROVIDED that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between Silicon Image, Inc. Indemnity Agreement the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him them in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnity Agreement (Ebay Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) or 4(b) of this Agreement 4 or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent thatextent, the Company shall prove that it is determined by clear and convincing evidence to a forum listed described in Section 8(c) below that the Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification. The Indemnitee shall be presumed to be entitled to indemnification hereunder upon submission of a written claim (and, in any action brought to enforce a claim for expenses incurred in defending any Proceeding, in advance of its final disposition) and thereafter the Company shall have the burden of proof to overcome the presumption that the Indemnitee is not required pursuant to Sections 4 and 10 hereofso entitled.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not at the time parties to the proceeding Proceeding for which indemnification is being sought;
(2) The stockholders If a quorum cannot be obtained under (1) of this subsection, by a majority vote of a committee duly designated by the CompanyBoard, in which designation directors who are parties may participate, consisting solely of two or more directors who are not at the time parties to the Proceeding for which indemnification is being sought;
(3) Legal counsel selected The shareholders of the Company (provided that shares owned by or voted under the Indemnitee, and reasonably approved by control of directors who are at the Board, which counsel shall make such determination in a written opiniontime parties to the Proceeding may not be voted on the determination); or
(4) A panel Special legal counsel (i) selected by the Board or its committee in the manner prescribed in (1) or (2) of three this subsection or (3ii) arbitrators, one if a quorum of the Board cannot be obtained under (1) of whom is selected by the Company, another of whom is selected by the Indemnitee this subsection and the last of whom is selected by the first two a committee cannot be designated under (2) arbitrators so selectedof this subsection, selected by majority vote of the full Board, in which selection directors who are parties may participate.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above), there shall be submitted the Company shall, at its own expense, submit to the selected forum, in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure ensure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c) hereof selected by the Indemnitee determines that the Indemnitee is entitled to indemnification with respect to a specific Proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8(c) selected by the Indemnitee determines that the Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, pending or any other court of competent jurisdiction, jurisdiction for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all reasonable Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all reasonable Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) . A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) . The stockholders of the Company;
(3) . Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) . A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.. •
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee Indemnity shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's indemnitee’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee indemnitee in any an1f such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnification & Liability (Cape Coastal Trading Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the Hiway Technologies, Inc. Indemnity Agreement investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this appeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court. Hiway Technologies, Inc. Indemnity Agreement.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) ), 4(b), or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or.
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) In 8.2 Subject to any limitations under the Law, in the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, in accordance with this Agreement unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3b) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4c) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.; or
(d) A court of competent jurisdiction.
8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdictionOhio courts, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
8.7 In making any determination with respect to entitlement to indemnification hereunder, the person or persons (including any court having jurisdiction over the matter) making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification as set forth in this Agreement, and the Company shall have the burden of overcoming that presumption in connection with the making of any determination contrary to that presumption. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, upon a plea of nolo contendere or its equivalent, or entry of an order of probation prior to judgment, does not create a presumption that Indemnitee did not meet the requisite standard of conduct described herein for indemnification. The knowledge and/or actions, or failure to act, of any other director, officer, employee or agent of the Company shall not be imputed to Indemnitee for purposes of determining any other right to indemnification under this Agreement.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or and not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 7.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 3.1 or 4(b) 3.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceeding.proceeding,
(b) 7.2 In the event that Section 8(a) 7.1 is inapplicable, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 7.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 7.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 7.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 7.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) 7.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 7.5 If the forum listed in Section 8(c) 7.3 hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, such determination shall be final and binding on the Company. If the forum listed in Section 7.3 hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) 7.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 7 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnification Agreement (Allied Healthcare International Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the lndemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the lndemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee lndemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, lndemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee lndemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee lndemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee lndemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee lndemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee the lndemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee lndemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee lndemnitee against all Expenses expenses incurred by the Indemnitee lndemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee lndemnitee and against all Expenses expenses incurred by the Indemnitee lndemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee lndemnitee involving the interpretation or enforcement of the rights of the Indemnitee lndemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee lndemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only unless the Indemnitee has not met the applicable standard of conduct required to entitle the extent that, the Company shall prove by clear and convincing evidence Indemnitee to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereofsuch indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled such Indemnitee’s entitlement to indemnification will be heard from among the following, except that the Indemnitee may select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum majority vote of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought, even if less than a quorum;
(2b) The stockholders A committee of the Companysuch directors designated by majority vote of such directors, even if less than a quorum;
(3c) Legal If there are no such directors, or if such directors so direct, by independent legal counsel selected by (the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination “Independent Counsel”) in a written opinion; or
(4d) A panel The stockholders of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable8.4 The Indemnitee shall select the Independent Counsel, who shall be reasonably satisfactory to the Company. The Company shall pay the reasonable fees and in no event later than thirty (30) days after written notice expenses of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claimIndependent Counsel.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) 8.5 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or and not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) A court with jurisdiction over the matter.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to a court with jurisdiction over the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdictionmatter , for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section subsections 4(a) ), 4(b), or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, which forums shall determine that the Indemnitee is entitled to such indemnification unless the Company shall prove by clear and convincing evidence that: (i) the Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Section 9 hereof, and (ii) the requirements of Section 8(a) have not been met:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders shareholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(dc) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c8(b) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(ed) Notwithstanding a determination by any forum listed in Section 8(c8(b) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company . Such court shall indemnify find that the Indemnitee against all Expenses incurred by is entitled to indemnification if the Indemnitee in connection with any hearing proves by a preponderance of the evidence that he or Proceeding under this Section 8 involving she has met the applicable standard of conduct required to entitle the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any to such Proceeding was frivolous or made in bad faith.indemnification unless
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
, provided, -------- however, that the Indemnitee can select a forum consisting of the stockholders ------- of the Company only with the approval of the Company: (1a) A a quorum of the Board of Directors consisting of directors who are not parties to the proceeding for which indemnification is being sought;
; (2b) The the stockholders of the Company;
; (3c) Legal independent legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the BoardBoard of Directors, which counsel shall make such determination in a written opinion; or
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or (e) the Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the claim for indemnification by the Indemnitee is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided, however, that such right is executed within sixty (60) days after the -------- ------- final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement, unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the ------ stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the shareholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders shareholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee Indemnitee, and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed in Section 8(c) 8.3 hereof selected by the Indemnitee determines that the Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8.3 hereof selected by the Indemnitee determines that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of determining whether the Indemnitee is entitled to indemnification and enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided, however, that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the courts of the State of New York or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court courts of Chancery the State of DelawareNew York, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 7.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 3.1 or 4(b) 3.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 7.2 In the event that Section 8(a) 7.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 7.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 7.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 7.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3b) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4c) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.; or
(d) Any court having jurisdiction of subject matter and the parties.
7.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 7.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 7.5 If the forum listed selected in accordance with Section 8(c) 7.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court court having jurisdiction of Chancery of Delawaresubject matter and the parties, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 7.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 7.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 7 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnification Agreement (Computer Programs & Systems Inc)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) ), 4(b), or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a8
(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or.
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 8(c) hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To Anything contained elsewhere herein to the extent contrary notwithstanding, the determination as to whether or not Indemnitee has been successful met the standard of conduct required to qualify and entitle him or her, partially or fully, to indemnification under the provisions of any subparagraph of Paragraph 3 hereof may be made either (i) by the Board of Directors by majority vote of a quorum consisting of directors who were not parties to the Proceeding which gives rise to a claim made by Indemnitee under this Agreement, (ii) by independent legal counsel (who may not be the outside counsel regularly employed by the Company) in a written opinion, or (iii) by the stockholders of the Company by majority vote of a quorum thereof consisting of stockholders who are not parties to the Proceeding which gives rise to a claim made by Indemnitee under this Agreement, provided that the manner in which (and if applicable, the counsel by which) the right to indemnification is to be determined shall be approved in advance in writing by both Indemnitee and the Board of Directors of the Company by majority vote of a quorum consisting of directors who were not parties to the Proceeding which gives rise to a claim made by Indemnitee under this Agreement. In the event that such parties are unable to agree on the merits manner in which the determination of the right to indemnity is to be made, such determination may be made by independent legal counsel retained by the Company especially for such purpose, provided that such counsel be approved in advance in writing by both the Board of Directors and Indemnitee and, provided further, that such counsel shall not be outside counsel regularly employed by the Company. In the event that the Parties hereto are unable to agree on the selection of such outside counsel, such outside counsel shall be selected by lot by the outside counsel regularly employed by the Company from among the California law firms having more than twenty (20) attorneys and having a rating of “av” or better in the then current ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Law Directory. Such selection by lot shall be made in the presence of Indemnitee (and his or her legal counselor either of them, as Indemnitee may elect). The outside counsel regularly employed by the Company and Indemnitee (and his or her legal counselor either of them as Indemnitee may elect) shall contact, in the order of their selection by lot, such law firms, requesting each such firm to accept engagement to make the determination required hereunder until one of such firms accepts such engagement. The fees and expenses of counsel in connection with making said determination contemplated hereunder shall be paid by the Company, and if requested by such counsel, the Company shall give such counsel an appropriate written agreement with respect to the payment of their fees and expenses and such other matters as may be reasonably requested by counsel. Notwithstanding the foregoing, Indemnitee may, either before or within two (2) years after a determination has been made as provided above, petition the Court of Chancery of the State of Delaware or any other court of competent jurisdiction to determine whether Indemnitee is entitled to indemnification under the provisions hereof under which he or she claims the right to indemnification, and such court shall thereupon have the exclusive authority to make such determination, unless and until such court dismisses or otherwise in defense terminates such action without having made such determination. The determination of the court, as petitioned, as to whether Indemnitee is entitled to indemnification hereunder, shall be independent and irrespective of any Proceeding referred prior determination made by the Board of Directors, the stockholders or counsel. If the Court shall determine that Indemnitee is entitled to in Section 4(a) or 4(b) of this Agreement or in the defense of indemnification hereunder as to any claim, issue or matter described thereininvolved in the Proceeding with respect to which there has been no prior determination pursuant hereto or with respect to which there has been a prior determination pursuant hereto that Indemnitee was not entitled to indemnification hereunder, the Company shall indemnify the Indemnitee against Expenses pay all expenses (including attorneys’ fees) actually and reasonably incurred by him Indemnitee in connection with such judicial determination. If the investigation, defense, or appeal of such Proceeding.
person (b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of including the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal Directors, independent legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4, the stockholders, or a court) A panel of three (3) arbitratorsmaking the determination hereunder shall determine that Indemnitee is entitled to indemnification as to some claims, one (1) of whom issues or matters involved in the proceeding but not as to others, such persons shall reasonably prorate the losses with respect to which indemnification is selected sought by the CompanyIndemnitee among such claims, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicableissues or matters. If, and in no event later than thirty (30) days after written notice of to the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim extent it is finally determined hereunder that the Indemnitee is not entitled to indemnification, and then Indemnitee agrees to reimburse the Company shall act in for all expenses advanced or prepaid hereunder, or the utmost good faith proper proportion thereof, other than the expenses of obtaining the judicial determination referred to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject above. Anything contained elsewhere herein to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrarycontrary notwithstanding, the Company shall not be liable to indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court for any amounts paid in settlement of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee any Proceeding or claim effected without its written consent. The Company shall not settle any Proceeding or claim in any such Proceeding was frivolous manner which would impose any penalty or made in bad faithlimitation on Indemnitee without Indemnitee’s written consent. Neither the Company nor Indemnitee will unreasonably withhold their consent to any proposed settlement.
Appears in 1 contract
Sources: Indemnification Agreement (Standard Pacific Corp /De/)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The the stockholders of the Company, provided however that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company;
(3c) Legal legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) the courts of the State of New York or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court courts of Chancery the State of DelawareNew York, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court having jurisdiction of competent jurisdictionsubject matter and the parties, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1. To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defensesuch proceeding, or appeal of such Proceedingclaim, issue or matter, as the case may be.
(b) 8.2. In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3. The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4. As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a . The Indemnitee shall cooperate with the person, persons or entity making such determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination.
8.5. If the forum selected in accordance with Section 8.3 hereof is not a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum; provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to appeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
8.6. The knowledge and/or actions, or failure to act, of any other director, officer, employee or other agent of the Company shall not be imputed to the Indemnitee for purposes of determining the right to indemnification pursuant to under this Agreement.
(f) 8.7. Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section subsections 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section Subsection 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnity Agreement (Maxtor Corp)
Determination of Right to Indemnification. (a) 7.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 3.1 or 4(b) 3.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) 7.2 In the event that Section 8(a) 7.1 is inapplicable, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 7.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 7.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 7.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) 7.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) 7.3 above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 7.5 If the forum listed in Section 8(c) 7.3 hereof selected by Indemnitee determines that Indemnitee is entitled to indemnification with respect to a specific proceeding, such determination shall be final and binding on the Company. If the forum listed in Section 7.3 hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this the Agreement.
(f) 7.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 7 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement. unless a court of competent jurisdiction finds that each of the the, material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in the defense of any Proceeding proceeding referred to in Section 4(a), 4(b), 4(c) or 4(b4(d) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him Indemnitee in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In Indemnitee shall be entitled to select the event that Section 8(a) is inapplicableforum for determining, as described below, the validity of any claim by the Company that Indemnitee is not entitled to indemnification hereunder, which forum shall also indemnify the determine that Indemnitee unless, and only is entitled to the extent that, such indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to a forum listed in Section 8(c) below entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Sections Section 4 or Section 10 hereof and 10 hereof.
(cii) the requirements of Section 8(a) have not been met. The forum shall determine that Indemnitee is entitled to enforce a claim for advancement of expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required undertaking to the Company. Indemnitee shall be entitled to select the forum in which from the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the followingfollowing list:
(1i) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The stockholders the shareholders of the Company;
(3iii) Legal legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4iv) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(dc) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c8(b) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum, in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(ed) Notwithstanding a determination by any If the forum listed selected in Section 8(c8(b) hereof above determines that Indemnitee is not entitled to indemnification with respect indemnification, payment to a specific Proceeding, the Indemnitee shall have the right, subject be made within 20 days after such determination.
(e) Any right to the provisions indemnification or advances granted by this Agreement to Indemnitee shall be enforceable by or on behalf of Section 18 hereof, to apply to the Court of Chancery of Delaware, Indemnitee in the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, if (i) the claim for the purpose indemnification or advances is denied, in whole or in part, (as further discussed in Section 9 below) or (ii) no disposition of enforcing the Indemnitee's right such claim is made within 90 days of request therefor. Indemnitee shall be entitled to indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Section 4 or Section 10 hereof and (ii) the requirements of Section 8(a) have not been met. Indemnitee shall be entitled to enforce a claim for expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required affirmation and undertaking to the Company. Neither the failure of the Company (including its Board of Directors or its shareholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Indemnitee is proper in the circumstances nor an actual determination by the Company (including its Board of Directors or its shareholders) that such indemnification is improper shall be a defense to the action or create a presumption that the Indemnitee is not entitled to indemnification under this AgreementAgreement or otherwise.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement, unless a court of competent jurisdiction finds that each of the claims and/or or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnification Agreement (Rush Enterprises Inc \Tx\)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in the defense of any Proceeding proceeding referred to in Section 4(a), 4(b), 4(c) or 4(b4(d) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him Indemnitee in connection with the investigation, defense, defense or appeal of such Proceedingproceeding.
(b) In Indemnitee shall be entitled to select the event that Section 8(a) is inapplicableforum for determining, as described below, the validity of any claim by the Company that Indemnitee is not entitled to indemnification hereunder, which forum shall also indemnify the determine that Indemnitee unless, and only is entitled to the extent that, such indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to a forum listed in Section 8(c) below entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Sections Section 4 or 9 hereof and 10 hereof.
(cii) the requirements of Section 8(a) have not been met. The forum shall determine that Indemnitee is entitled to enforce a claim for advancement of expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required undertaking to the Company. Indemnitee shall be entitled to select the forum in which from the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the followingfollowing list:
(1i) A a quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The the stockholders of the Company;
; (3iii) Legal legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4iv) A a panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(dc) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c8(b) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum, in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost upmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(ed) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled Any right to indemnification with respect or advances granted by the Agreement to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions be enforceable by or on behalf of Section 18 hereof, to apply to Indemnitee in the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, if (i) the claim for the purpose indemnification or advances is denied, in whole or in part, or (ii) no disposition of enforcing the Indemnitee's right such claim is made within 90 days of request therefor. Indemnitee shall be entitled to indemnification unless the Company shall prove by clear and convincing evidence that (i) Indemnitee has not met the applicable standard of conduct required to entitle Indemnitee to such indemnification or that indemnification is otherwise not required pursuant to Section 4 or 9 hereof and (ii) the requirements of Section 8(a) have not been met. Indemnitee shall be entitled to enforce a claim for expenses pursuant to Section 6 hereof unless the Company shall prove by clear and convincing evidence that Indemnitee has not tendered the required undertaking to the Company. Neither the failure of the Company (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Indemnitee is proper in the circumstances nor an actual determination by the Company (including its Board of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that the Indemnitee is not entitled to indemnification under this AgreementAgreement or otherwise.
(fe) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement Agreement, unless a court of competent jurisdiction finds that each of the claims and/or or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the Indemnity Agreement investigation, defense, defense or appeal of such Proceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire Proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding Proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3b) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4c) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The state or federal courts located in Salt Lake County, Utah or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delawarestate or federal court in Salt Lake County, Utah, the court in which that the Proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnity Agreement (Evans & Sutherland Computer Corp)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.;
Appears in 1 contract
Sources: Indemnity Agreement (Transmeta Corp)
Determination of Right to Indemnification. (a) To the extent the that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to Indemnifiable Claim or portion thereof, including, without limitation, the dismissal of an action without prejudice, Indemnitee shall be indemnified against all Expenses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 1 and no Standard of Conduct Determination (as defined in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company below) shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingbe required.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to To the extent thatthat the provisions of Section 4(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, the Company shall prove by clear and convincing evidence any determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law that is a legally required condition precedent to indemnification of Indemnitee hereunder against Expenses relating to, arising out of or resulting from such Indemnifiable Claim (a forum listed in Section 8(c“Standard Of Conduct Determination”) below that indemnification is not required pursuant to Sections 4 and 10 hereof.
(c) The Indemnitee shall be entitled to select made as follows: (i) by the forum in which the validity majority vote of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
Indemnifiable Claim, even if less than a quorum; (2ii) The stockholders by a committee of the Company;
(3) Legal counsel selected such directors designated by the Indemniteemajority vote of such directors, and reasonably approved even if less than a quorum; (iii) if there are no such directors, or such directors so direct, by the Board, which counsel shall make such determination Independent Counsel (as defined below) in a written opinionopinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
or (4iv) A panel of three (3) arbitrators, one (1) of whom is selected by the Company’s stockholders. Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, another of whom including providing to such person or persons, upon reasonable advance request, any documentation or information which is selected by the not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted reasonably necessary to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claimdetermination.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or made in bad faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) or 4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with therewith to the investigation, defense, or appeal of such Proceedingextent permitted by law.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Upon each submission of a written notice by Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that for indemnification is not required pursuant to Sections 4 and 10 hereofSection 7(a) above, a determination with respect to Indemnitee’s entitlement thereto because he or she has met all the applicable standards set forth in this Agreement shall be made in accordance with this Section 8.
(c) The Indemnitee shall be entitled to select the forum in which the validity decision maker or decision making body who will determine, on behalf of the Company's claim under Section 8(b) hereof that , the Indemnitee is not entitled Indemnitee’s entitlement to indemnification will be heard from among the following:
(1) A quorum All of the members of the Board consisting of directors Directors who are not parties to or participants in the proceeding for which indemnification is being sought, even though less than a quorum, or a committee of such directors designated by majority vote of such directors, even though less than a quorum;
(2) The stockholders of the Company;; or
(3) Legal Independent legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum decision maker pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to such forum as the Indemnitee or the Indemnitee's counsel may reasonably request, selected decision maker its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum decision maker listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of the State of Delaware, the court in which that the Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding In any other provision suit brought by Indemnitee seeking to enforce a right to indemnification hereunder (but not a suit brought by Indemnitee seeking to enforce a right to an advancement of expenses hereunder), it shall be a defense that Indemnitee has not met any applicable standard for indemnification under applicable law. With respect to any suit brought by Indemnitee seeking to enforce a right to indemnification or right to advancement of expenses hereunder or any suit brought by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), neither (i) the failure of the Company to have made a determination prior to commencement of such suit that indemnification of such person is proper in the circumstances because such person has met the applicable standards of conduct under applicable law, nor (ii) an actual determination by the Company that such person has not met such applicable standards of conduct, shall create a presumption that such person has not met the applicable standards of conduct or, in a case brought by such person seeking to enforce a right to indemnification, be a defense to such suit.
(g) In any suit brought by Indemnitee seeking to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), the burden shall be on the Company to prove that the Indemnitee is not entitled to be indemnified, or to such an advancement of expenses, under this Agreement to the contrary, the or otherwise.
(h) The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless so long as a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous entitled to indemnification or made advancement of expenses, in bad faithwhole or in part.
Appears in 1 contract
Sources: Indemnification Agreement (ACA Capital Holdings Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the 5 investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Sources: Indemnification Agreement (Asymetrix Learning Systems Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee’s claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within 60 days after the final decision of such forum is rendered. If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section subsections 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such Proceedingproceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section Subsection 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any and forum listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or made in bad faith.
Appears in 1 contract
Sources: Indemnity Agreement (Maxtor Corp)
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a), 4(b) or 4(b4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, or appeal of such Proceedingtherewith.
(b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2) The stockholders of the Company;
(3) Legal counsel selected by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or
(4) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected.
(d) As soon as practicable, and in no event later than thirty (30) 30 days after written notice of the Indemnitee's ’s choice of forum pursuant to Section 8(c) above, there shall be submitted the Company shall, at its own expense, submit to the selected forum in such forum manner as the Indemnitee or the Indemnitee's ’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, ; and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification with respect to a specific Proceedingproceeding, the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding proceeding is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's ’s right to indemnification pursuant to this the Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, the The Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a3.4(a) or 4(b3.4(b) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) In the event that Section 8(a3.6(a) is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b3.6(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1i) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2ii) The stockholders of the Company;
(3iii) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4iv) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(v) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c3.6(c) above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any If the forum listed selected in accordance with Section 8(c3.c(c) hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided that such right is executed within sixty (60) days after the final decision of such forum is rendered. If the forum selected in accordance with Section 3.6(c) hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him in connection with the Indemnity Agreement investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except ------ that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having jurisdiction of subject matter and the parties.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) 8.3 hereof that Indemnitee is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding the proceeding giving rise to the Indemnitee's claim for indemnification is or was pending, pending or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided -------- that such right to indemnification pursuant to this Agreement.
is executed within sixty (f60) Notwithstanding any other provision days after the final decision of such forum is rendered. If the forum selected in this Agreement to the contraryaccordance with Section 8.3 hereof is a court, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or Proceeding under this Section 8 involving the Indemnitee and against all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of then the rights of the Company or the Indemnitee under this Agreement unless a to appeal any decision of such court of competent jurisdiction finds that each shall be governed by the applicable laws and rules governing appeals of the claims and/or defenses decision of the Indemnitee in any such Proceeding was frivolous or made in bad faithcourt.
Appears in 1 contract
Sources: Indemnity Agreement (Ebay Inc)
Determination of Right to Indemnification. (a) 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any Proceeding proceeding referred to in Section 4(a) 4.1 or 4(b) 4.2 of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against Expenses expenses actually and reasonably incurred by him or her in connection with the investigation, defense, defense or appeal of such Proceedingproceeding, or such claim, issue or matter, as the case may be.
(b) 8.2 In the event that Section 8(a) 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall also nonetheless indemnify the Indemnitee unless, and only to the extent that, unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) 8.3 below that indemnification is the Indemnitee has not met the applicable standard of conduct required pursuant to Sections 4 and 10 hereofentitle the Indemnitee to such indemnification.
(c) 8.3 The Indemnitee shall be entitled to select the forum in which the validity of the Company's ’s claim under Section 8(b) 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company:
(1a) A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2b) The stockholders of the Company;
(3c) Legal counsel selected mutually agreed upon by the Indemnitee, Indemnitee and reasonably approved by the Board, which counsel shall make such determination in a written opinion; or;
(4d) A panel of three (3) arbitrators, one (1) of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected by the first two (2) arbitrators so selected; or
(e) The Court of Chancery of Delaware.
(d) 8.4 As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum has been selected pursuant to Section 8(c) 8.3 above, there shall be submitted the Company shall, at its own expense, submit to such the selected forum as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e) Notwithstanding a determination by any 8.5 If the forum listed selected in accordance with Section 8(c) hereof that Indemnitee 8.3 hereto is not entitled to indemnification with respect to a specific Proceedingcourt, then after the final decision of such forum is rendered, the Company or the Indemnitee shall have the right, subject to the provisions of Section 18 hereof, right to apply to the Court of Chancery of Delaware, the court in which that Proceeding is or was pending, or any other court of competent jurisdiction, for the purpose of enforcing appealing the Indemnitee's decision of such forum, provided, that such right is executed within sixty (60) days after the final decision of such forum is rendered .If the forum selected in accordance with Section 8.3 hereof is a court, then the rights of the Company or the Indemnitee to indemnification pursuant to this Agreementappeal any decision of such court shall be governed by the applicable laws and rules governing appeals of the decision of such court.
(f) 8.6 Notwithstanding any other provision in this Agreement to the contrary, the Company shall indemnify the Indemnitee against all Expenses expenses incurred by the Indemnitee in connection with any hearing or Proceeding proceeding under this Section 8 involving the Indemnitee and against all Expenses expenses incurred by the Indemnitee in connection with any other Proceeding proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee in any such Proceeding proceeding was frivolous or not made in bad good faith.
Appears in 1 contract