Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (i) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; or (ii) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or (iii) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies or its directors, officers, employees, agents, representatives or other indemnitees, unless (A) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (B) such Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or (iv) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; or (v) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Sources: Director Indemnification Agreement (Bankrate, Inc.)
Exception to Right of Indemnification. (a) Notwithstanding any provision in this AgreementAgreement to the contrary, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(i) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; or
(ii) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or.
(b) Notwithstanding any provision in this Agreement to the contrary, indemnification or advancement of expenses under this Agreement shall not be made to or on behalf of the Indemnitee if a judgment or other final adjudication establishes that his actions, or omissions to act, were material to the cause of action so adjudicated and constitute:
(i) a violation of the criminal law, unless the Indemnitee had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful;
(ii) a transaction from which the Indemnitee derived an improper personal benefit;
(iii) in connection with any Proceeding (or any part if the Indemnitee is a director, a circumstance under which the liability provisions of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any section 607.0834 of the Companies or its directors, officers, employees, agents, representatives or other indemnitees, unless (A) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (B) such Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this AgreementFBCA are applicable; or
(iv) if indemnification is requested under Section 2(a) and it has been adjudicated finally by willful misconduct or a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim conscious disregard for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; or
(v) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion Company in a proceeding by clear and convincing evidence.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect in the right of Indemnitee the Company to indemnification procure a judgment in its favor or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be proceeding by or in or not opposed to the best interests right of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawfula shareholder.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds Fund Indemnitors set forth in Section 9(c8(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amendedAct, or similar provisions of state statutory law or common law; or
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and in this respect, both the Company and Indemnitee had reasonable cause have been advised that the SEC believes that indemnification for liabilities arising under the federal securities laws is against public policy and is therefore unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination);
(f) in connection with any claim for reimbursement or any recovery policy of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act or Section 954 of the D▇▇▇-▇▇▇▇▇ Act, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes Oxley Act), if Indemnitee is held liable therefor (including pursuant to any settlement); or
(vg) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgement as constituted a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds any Other Indemnitors set forth in Section 9(c8(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) for which a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company, Parent and/or any of Parent’s subsidiaries or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the Securities and Exchange Commission under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds Secondary Indemnitors set forth in Section 9(c8(f) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless unless
(Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds Fund Indemnitors set forth in Section 9(c8(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or.
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds any Other Indemnitors set forth in Section 9(c8(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity indemnify the Indemnitee in connection with any claim made against Indemniteeclaim:
(ia) for which payment has actually been made to or on behalf of the Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; or
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the United States Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common lawlaw of the United States; or
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by the Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by the Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such Company specifically authorized the Indemnitee to bring the Proceeding (or any part of any Proceeding, as applicable) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or
(ivd) if indemnification is requested under Section 2(a) and it has in connection with a Proceeding by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated finally by final judgment in a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; or
(v) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court law of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, liable for willful misconduct in the best interests performance of such Company, Indemnitee shall not be entitled his duty to payment of Expenses hereunder the Company unless and only to the extent that any court in which such Proceeding action was brought shall determine upon application that that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which as such court shall deem proper.; or
(be) brought against him by reason of any alleged dishonesty or fraud on his part and in which the Indemnitee shall be deemed have been adjudicated by final judgment in a court of law or other tribunal of competent jurisdiction to have acted in good faith if committed acts (i) of active and deliberate dishonesty, (ii) with actual dishonest purpose and intent, and (iii) which acts were material to the cause of action so adjudicated; or
(f) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnity; or
(g) arising out of the Indemnitee’s action is based on breach of an employment agreement between the records Indemnitee and the Company or books any of account of the Enterpriseits subsidiaries, including financial statementsif any, or on information supplied to any other agreement between the Indemnitee by and the directorsCompany or any of its subsidiaries, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made but only to the Enterprise extent that such breach shall have been determined to have occurred by an independent certified public accountant or by an appraiser final judgment in a court of law or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, tribunal of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencecompetent jurisdiction.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds any Other Indemnitors set forth in Section 9(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b17(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 10 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 10, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the Securities and Exchange Commission under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; orIndemnitee;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless unless
(Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds [—] set forth in Section 9(c8(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Sources: Indemnification Agreement (Civitas Therapeutics, Inc.)
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity indemnification (and, in the case of Section 9(c), the Company shall have no obligation under this Agreement to advance expenses) in connection with any claim made by or against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; or;
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or
(vf) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed is sought or a separate proceeding or action to act (i) in good faith establish rights and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; , provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds Secondary Indemnitors set forth in Section 9(c88(c) abovehereof; or
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amendedAct, or similar provisions of state statutory law or common law; or
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9);
(e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination);
(f) in connection with any claim for reimbursement or any recovery policy of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act or Section 954 of the ▇▇▇▇-▇▇▇▇▇ Act, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (including pursuant to any settlement); or
(vg) if on account of conduct that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with which indemnification is requested sought or a separate proceeding or action to establish rights and liabilities under Section 2(bthis Agreement. Any provision herein to the contrary notwithstanding, the Company will not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in and required by the rules and regulations promulgated under the Securities Act, or in any registration statement filed with the Securities and Exchange Commission under the Securities Act. Indemnitee acknowledges that paragraph (h) and it has been adjudicated finally by a court of competent jurisdiction thatItem 512 of Regulation S-K promulgated under the Securities Act currently generally requires the Company to undertake, in connection with any registration statement filed under the subject Securities Act, to submit the issue of the Proceeding out enforceability of which Indemnitee’s rights under this Agreement in connection with any liability under the claim for indemnification has arisen, Indemnitee failed Securities Act on public policy grounds to act (i) in good faith a court of appropriate jurisdiction and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests governed by any final adjudication of such Company, issue. Indemnitee shall not be entitled to payment of Expenses hereunder unless specifically agrees that any such undertaking will supersede the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Sources: Indemnification Agreement
Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Companies Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provision [provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds Other Indemnitors set forth in Section 9(c8(c) above; or];
(iib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Companies Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amendedAct, or similar provisions of state statutory law or common law; or;
(iiic) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against any of the Companies Company or its directors, officers, employees, agents, representatives employees or other indemnitees, unless (Ai) the Board of Directors of such the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, initiation or (Bii) such the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such the Company under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or;
(ivd) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of such Company and, with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below);
(e) a final adjudication is made in the Proceeding that Indemnitee’s conduct was unlawfulin bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination);
(f) in connection with any claim for reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (including pursuant to any settlement); or
(vg) if indemnification on account of conduct that is requested established upon a final adjudication in the Proceeding as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in, and required by the rules and regulations promulgated under Section 2(bthe Securities Act of 1933, as amended (the “Act”) and it has been adjudicated finally by to be included in, any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of competent appropriate jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests governed by any final adjudication of such Company, issue. Indemnitee specifically agrees that any such undertaking shall not be entitled to payment of Expenses hereunder unless supersede the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Appears in 1 contract
Sources: Indemnification Agreement (Aquinox Pharmaceuticals, Inc)