PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section 11(b) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) business days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) business days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 hereof, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) business days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined below) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the Delaware Court, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 3 contracts

Sources: Indemnification Agreement (Blue Bird Corp), Indemnity Agreement (Blue Bird Corp), Purchase Agreement (Hennessy Capital Acquisition Corp.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have ~~occurred~~occurred after the date of this Agreement, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have ~~occurred~~occurred after the date of this Agreement, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the Board, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). If a Change in Control shall not have ~~occurred~~occurred after the date of this Agreement, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have ~~occurred~~occurred after the date of this Agreement, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (VIDA Global Inc.), Indemnification Agreement (Cyabra Strategy Ltd.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board,~~ Board or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten (10) business~~ 10 days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information ~~which~~ that is not privileged or otherwise protected from disclosure and ~~which~~ that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection ~~which~~ that shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (Oaktree Strategic Income II, Inc.), Indemnification Agreement (Fifth Street Finance Corp.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a ~~determination, if required by applicable law,~~ determination with respect to Indemnitee’s entitlement thereto shall be made in the specific ~~case~~case by one of the following four (4) methods, which shall be at the election of the Board: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, the Board may elect one of the following: (A) by a majority vote of the Disinterested Directors, even ~~though~~ if less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even ~~though~~ if less than a quorum of the Board, (C) if there are no such Disinterested ~~Directors or~~Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Board, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the Board~~. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board)~~, and ~~Indemnitee~~ the Company shall give written notice to ~~the Company~~ Indemnitee advising it him or her of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to~~ Indemnitee ~~advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be,~~ may, within ten (10) ~~business~~ days after such written notice of selection shall have been received, deliver to the Company ~~or to Indemnitee, as the case may be,~~ a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the ~~Company or~~ Indemnitee to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (JFB Construction Holdings), Indemnification Agreement (JFB Construction Holdings)

Appears in 2 contracts

Sources: Indemnification Agreement (Aptera Motors Corp), Indemnification Agreement (Aptera Motors Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a1) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~10(1), a determination, if required by applicable law, with respect to Indemnitee’s 's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the ~~Board~~Board of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B~~) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C~~) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (DC) if so directed by the Board, by the stockholders of the ~~Company~~Company-, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity ~~making~~ malting such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b2) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(1) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(2). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the ~~Board~~Board of Directors, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the ~~Board~~Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(1) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(1) ~~hereof.~~ hereof Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(1) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (Intersil Corp/De), Employment Agreement (Intersil Corp/De)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon ~~written request by Indemnitee~~ final disposition of a Proceeding for which indemnification is sought pursuant to Section ~~11(b~~3 or Section 4, Director shall submit promptly (and in any event, no later than the applicable statute of limitations) ~~hereof,~~ to the Board a ~~determination, if required~~ written request for indemnification averring that he has met the applicable standard of conduct set forth herein. Any indemnification made under this Agreement pursuant to Section 3 or Section 4 shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Director is proper in the circumstances because Director has met the applicable ~~law, with respect to Indemnitee’s entitlement thereto~~ standard of conduct. Such determination shall be made in the ~~specific case~~following manner: (i) if a Change in Control shall have ~~occurred~~occurred and the Director is not a director at the time of such determination, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~Director; or and (ii) ~~if a Change~~ in ~~Control shall not have occurred,~~ any other circumstance: (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a 1416159.01-New York Server 7A - MSW majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Director or (D) if so directed by the Board, by the stockholders of the Company, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ and, if it is so determined that ~~Indemnitee~~ Director is entitled to indemnification, payment to ~~Indemnitee~~ Director shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. ~~Indemnitee~~ Director shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to ~~Indemnitee’s~~ Director's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to ~~Indemnitee~~ Director and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ ' fees and disbursements) incurred by ~~Indemnitee~~ Director in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to ~~Indemnitee’s~~ Director's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold ~~Indemnitee~~ Director harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~10(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~10(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the ~~Board~~Board within ten (10) days of submission of a written request by Director for indemnification pursuant to Section 10(a), and the Company shall give written notice to Director advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by ~~Indemnitee~~ Director within ten (10) days of submission of a written request by Director for indemnification pursuant to Section 10(a), (unless ~~Indemnitee~~ Director shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and ~~Indemnitee~~ Director shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected.~~ In either event, ~~Indemnitee~~ Director or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to ~~Indemnitee~~Director, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. ~~Absent~~ The objection must also include a ~~proper and timely objection, the Person so selected shall act as~~ proposed substitute Independent Counsel. If objection including a proposed substituted Independent Counsel is timely made, such ~~written~~ substituted Independent Counsel shall serve as Independent Counsel unless objected to within ten (10) days. An objection ~~is so made and substantiated,~~ to the substituted Independent Counsel may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If written objection is made, the Independent Counsel or substituted Independent Counsel proposed may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty~~ thirty (2030) ~~business~~ days after submission by ~~Indemnitee~~ Director of a written request for indemnification pursuant to Section ~~11(b~~10(a) hereof, no the parties have not agreed upon the selection of the Independent ~~Counsel shall have been selected and not objected to~~Counsel, either the Company or ~~Indemnitee~~ Director may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction 1416159.01-New York Server 7A - MSW for resolution of any objection which shall have been made by the Company or ~~Indemnitee~~ Director to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (Pzena Investment Management, Inc.), Indemnification Agreement (Pzena Investment Management, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~8(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B~~) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C~~) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) business days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied). (b) In the event ~~the determination of entitlement to indemnification~~ that legal counsel is ~~to be made by Independent Counsel~~ retained pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board9(a), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) business days after such written notice of the selection shall ~~have been received, deliver to the Company or~~ be provided promptly to Indemnitee, as the case may be, a written objection to such selection; provided, however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 hereof, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) business days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined below) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the Delaware Court, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding ~~or arbitration~~ pursuant to Section ~~14(a~~11(a) of this Agreement, ~~Independent Counsel~~ legal counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (Covance Inc), Indemnification Agreement (Covance Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (i) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (ii) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (A) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (B) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (C) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ ; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a) ~~hereof~~and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to the Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 2 contracts

Sources: Indemnification Agreement (Dynatrace Holdings LLC), Indemnification Agreement (Dynatrace Holdings LLC)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) For avoidance of doubt and notwithstanding anything in this Agreement to the contrary, no indemnification shall be made under this Agreement without a determination made in accordance with Section 8.55 of the Act that the Indemnitee has met the relevant standard of conduct set forth in Section 8.51 of the Act. Upon receipt of Indemnitee’s written request ~~by Indemnitee~~ for indemnification pursuant to Section ~~11(b) hereof~~9(c), a ~~determination, if required by applicable law,~~ determination with respect ~~to Indemnitee’s entitlement~~ thereto shall be made in the specific ~~case~~case by one of the following three methods, which shall be at the election of the Board: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, (Bii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, or (Ciii) if there are no ~~such~~ Disinterested Directors ~~or,~~ or if ~~such~~ the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. Notwithstanding the above, ~~(D)~~ if ~~so directed~~ a determination with respect to Indemnitee’s right to indemnification is to be made following a Change of Control, such determination shall be made in the specific case by Independent Counsel in a written opinion to the Board, ~~by the stockholders~~ a copy of ~~the Company, or (E) by a final adjudication by a court of competent jurisdiction~~which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the ~~person~~Disinterested Directors or Independent Counsel, ~~persons or entity~~ as the case may be, making such determination shall be advanced and borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company ~~hereby indemnifies~~ is liable to indemnify and ~~agrees to~~ hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~10(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~10(b). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the ~~Board. If a Change in Control~~ Board and the Board shall ~~have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give~~ provide written notice to the ~~Company advising it~~ Indemnitee of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to~~ Indemnitee ~~advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be,~~ may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company ~~or to Indemnitee, as the case may be,~~ a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion~~. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel~~. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Massachusetts Court (as defined in Section 21) has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, ~~either the Company or~~ Indemnitee may petition the ~~Delaware~~ Massachusetts Court ~~(as defined below)~~ for resolution of any objection which shall have been made by ~~the Company or~~ Indemnitee to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing~~). (c~~) The Company ~~agrees to~~ shall pay ~~the~~ all reasonable fees and expenses incident to the procedures in this Section 10(b), regardless of ~~Independent Counsel and to fully indemnify and hold harmless~~ the manner in which such Independent Counsel ~~against any and all Expenses, claims, liabilities and damages arising out of~~ was selected or ~~relating to this Agreement or its engagement pursuant hereto~~appointed. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 2 contracts

Sources: Indemnification Agreement (Cyclerion Therapeutics, Inc.), Indemnification Agreement (Cyclerion Therapeutics, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon written request by~~ To the extent that Indemnitee ~~for indemnification pursuant~~ shall have been successful on the merits in any Proceeding to ~~Section 11(b) hereof~~which it is a party or a participant or in defense of any claim, ~~a determination~~issue or matter therein, if the Company shall indemnify Indemnitee against Expenses, and no determination shall be required ~~by applicable law,~~ to be made with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder. The Company also shall indemnify Indemnitee if he or she has not failed to meet the applicable standard of conduct for indemnification. In cases where the first sentence of this Section 8(a) is inapplicable, a determination with respect to Indemnitee’s entitlement to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods which shall be at the election of Indemnitee, in his sole discretion: (i) if by a ~~Change in Control shall have occurred~~majority vote of the disinterested directors, even though less than a quorum; (ii) by a committee of disinterested directors designated by a majority vote of the disinterested directors, even though less than a quorum; or (iii) by Independent Counsel selected by Indemnitee and approved by the Board of Directors (which approval may not be unreasonably withheld or delayed) in a written opinion to the Board. If Indemnitee is an officer or director of the Company at the time that Indemnitee is making his or her election, then Indemnitee shall not select Independent Counsel to make the determination unless there are no disinterested directors or unless the disinterested directors agree to the selection of Independent Counsel. The selected forum shall be referred to herein as the “Reviewing Party.” Notwithstanding the foregoing, following any Change in Control, the Reviewing Party shall be Independent Counsel selected in the manner provided above in this Section 8(a). For purposes hereof, disinterested directors are those members of the Board who are not parties to the Proceeding in respect of which indemnification is sought. In the case that the Reviewing Party is the Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors orIndemnitee and, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such ~~determination~~determination to the extent any such amounts have not been previously advanced by the Company. As soon as practicable, and in no event later than thirty (30) days after receipt by the Company of written notice of Indemnitee’s choice of forum pursuant to this Section 8(a), the Company and Indemnitee shall ~~reasonably cooperate with~~ each submit to the ~~person~~Reviewing Party such information as they believe is appropriate for the Reviewing Party to consider. The Reviewing Party shall arrive at its decision within a reasonable period of time following the receipt of all such information from the Company and Indemnitee, ~~persons or entity making~~ but in no event later than thirty (30) days following the receipt of all such ~~determination with respect to Indemnitee’s entitlement to indemnification~~information, ~~including providing to such person, persons or entity upon reasonable advance request any documentation or information~~ provided that the time by which ~~is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of~~ the ~~Board or stockholder~~ Reviewing Party must reach a decision may be extended by mutual agreement of the Company ~~shall act reasonably~~ and ~~in good faith in making a determination regarding the~~ Indemnitee~~’s entitlement to indemnification under this Agreement~~. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons or entity making such determination~~ Independent Counsel shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereofFurther, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) business days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 hereof, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) business days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined below) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the Delaware Court, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of the Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretoCounsel. (db) If The Company shall indemnify Indemnitee against all Expenses incurred by Indemnitee in connection with any hearing or Proceeding under this Section 8 involving Indemnitee, and against all Expenses incurred by Indemnitee in connection with any other Proceeding between the Company ~~disputes a portion~~ and Indemnitee involving the interpretation or enforcement of the ~~amounts for which indemnification is requested,~~ rights of Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the ~~undisputed portion shall be paid and only the disputed portion withheld pending resolution~~ material claims of Indemnitee in any such ~~dispute~~Proceeding was frivolous or made in bad faith .

Appears in 2 contracts

Sources: Indemnification Agreement, Indemnification Agreement (Imperva Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by ~~Indemnitee~~ an Indemnified Person for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: : (i) if a Change in Control ~~shall have~~ has occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~such Indemnified Person; or or (ii) if a Change in Control ~~shall~~ has not ~~have~~ occurred, , (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, , (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, , (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~such Indemnified Person, or (D) if so directed by the Board, by the stockholders of the Company~~, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that ~~Indemnitee~~ an Indemnified Person is entitled to indemnification, payment to ~~Indemnitee~~ such Indemnified Person shall be made within ~~ten (10) business~~ 10 days after such determination. ~~Indemnitee~~ Each Indemnified Person shall ~~reasonably~~ cooperate with the ~~person, persons~~ Person or ~~entity~~ Persons making such determination with respect to ~~Indemnitee~~such Indemnified Person’s entitlement to indemnification, including providing to such ~~person, persons~~ Person or ~~entity~~ Persons upon reasonable advance request any documentation or information ~~which~~ that is not privileged or otherwise protected from disclosure and ~~which is~~ reasonably available to ~~Indemnitee~~ such Indemnified Person and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses ~~(including attorneys’ fees and disbursements)~~ incurred by ~~Indemnitee~~ such Indemnified Person in so cooperating with the ~~person, persons~~ Person or ~~entity~~ Persons making such determination shall be borne by the Company (irrespective of the determination as to ~~Indemnitee~~such Indemnified Person’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold ~~Indemnitee~~ such Indemnified Person harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent ~~Counsel pursuant to Section 12(a) hereof~~Counsel, the Independent Counsel shall be selected as ~~provided in this Section 12(b).~~ follows. (i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. , and the Company shall give written notice to the Indemnified Person advising him of the identity of the Independent Counsel so selected. (ii) If a Change in Control shall have occurred, the Independent Counsel shall be selected by ~~Indemnitee~~ the Indemnified Person (unless ~~Indemnitee~~ he shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and ~~Indemnitee~~ such Indemnified Person shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected.~~ In either event, ~~Indemnitee~~ the Indemnified Person or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to ~~Indemnitee~~such Indemnified Person, as the case may be, a written objection to such selection; provided~~, however~~ , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by ~~Indemnitee~~ such Indemnified Person of a written request for indemnification pursuant to Section ~~11(b~~10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or ~~Indemnitee~~ such Indemnified Person may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or ~~Indemnitee~~ such Indemnified Person to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the ~~Delaware Court~~Court or by such other Person as the Court shall designate, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (General Nutrition International Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board,~~ Board or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Lydall Inc /De/)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~above, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board,~~ Board or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by a majority vote of the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the New York Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the ~~Delaware~~ New York Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Iberdrola USA, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by ~~Indemnitee~~ an Indemnified Person for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: : (i) if a Change in Control ~~shall have~~ has occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~such Indemnified Person; or or (ii) if a Change in Control ~~shall~~ has not ~~have~~ occurred, , (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, , (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, , (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~such Indemnified Person, or (D) if so directed by the Board, by the stockholders of the Company~~, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that ~~Indemnitee~~ an Indemnified Person is entitled to indemnification, payment to ~~Indemnitee~~ such Indemnified Person shall be made within ~~ten (10) business~~ 10 days after such determination. ~~Indemnitee~~ Each Indemnified Person shall ~~reasonably~~ cooperate with the ~~person, persons~~ Person or ~~entity~~ Persons making such determination with respect to ~~Indemnitee~~such Indemnified Person’s entitlement to indemnification, including providing to such ~~person, persons~~ Person or ~~entity~~ Persons upon reasonable advance request any documentation or information ~~which~~ that is not privileged or otherwise protected from disclosure and ~~which is~~ reasonably available to ~~Indemnitee~~ such Indemnified Person and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses ~~(including attorneys’ fees and disbursements)~~ incurred by ~~Indemnitee~~ such Indemnified Person in so cooperating with the ~~person, persons~~ Person or ~~entity~~ Persons making such determination shall be borne by the Company (irrespective of the determination as to ~~Indemnitee~~such Indemnified Person’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold ~~Indemnitee~~ such Indemnified Person harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent ~~Counsel pursuant to Section 12(a) hereof~~Counsel, the Independent Counsel shall be selected as ~~provided in this Section 12(b).~~ follows: (i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. , and the Company shall give written notice to the Indemnified Person advising him of the identity of the Independent Counsel so selected. (ii) If a Change in Control shall have occurred, the Independent Counsel shall be selected by ~~Indemnitee~~ the Indemnified Person (unless ~~Indemnitee~~ he shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and ~~Indemnitee~~ such Indemnified Person shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected.~~ In either event, ~~Indemnitee~~ the Indemnified Person or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to ~~Indemnitee~~such Indemnified Person, as the case may be, a written objection to such selection; provided~~, however~~ , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by ~~Indemnitee~~ such Indemnified Person of a written request for indemnification pursuant to Section ~~11(b~~10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or ~~Indemnitee~~ such Indemnified Person may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or ~~Indemnitee~~ such Indemnified Person to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the ~~Delaware Court~~Court or by such other Person as the Court shall designate, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Orchard Supply Hardware Stores Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the Board, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the ~~Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board)~~Board of Directors, and ~~Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board,~~ the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. ~~In either event,~~ Indemnitee ~~or the Company, as the case may be,~~ may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company ~~or to Indemnitee, as the case may be,~~ a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the ~~Company or~~ Indemnitee to the ~~other~~Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (McBc Holdings, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the ~~Board~~Board and to the extent that the Company is a controlled public company as set forth in the Certificate of Incorporation, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section ~~2 hereof~~2, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a~~) of this Agreement~~), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Caesars Acquisition Co)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as an officer of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ ; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as an officer of the Company, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Atlassian Corp PLC)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested ~~Directors~~Board Members, even though less than a quorum of the Board, (B) by a committee of Disinterested ~~Directors~~ Board Members designated by a majority vote of the Disinterested ~~Directors~~Board Members, even though less than a quorum of the Board, or (C) if there are no such Disinterested ~~Directors~~ Board Members or, if such Disinterested ~~Directors~~ Board Members so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee~~, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or ~~entity~~ entity, upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. In no event shall a determination be required in connection with any Proceeding or portion thereof with respect to which Indemnitee, who is a member of the Board, officer, employee or agent of the Company and/or a member of a governing board, director, officer, trustee, partner, managing member, fiduciary, employee or agent of another Enterprise, has been successful on the merits or otherwise. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising ~~him~~ such Indemnitee of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of the selection of Independent Counsel shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person or firm so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~a court of competent jurisdiction or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of the Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Colt Finance Corp.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. ~~Any~~ The Company shall likewise cooperate with Indemnitee and Independent Counsel, ~~member of the Board or stockholder of the Company shall act reasonably and in good faith~~ if applicable, in making a such determination ~~regarding the~~ with respect to Indemnitee’s entitlement to ~~indemnification under this Agreement~~indemnification, including providing to such counsel and Indemnitee, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Company and reasonably necessary to such determination. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ [; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee]. Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee [or the Company, as the case may be, ,] may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company [or to Indemnitee, as the case may be, ,] a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the ~~Delaware Court, and~~ court or by such other Person as the court shall designate. The Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to the Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 1 contract

Sources: Director Indemnification Agreement (Vigil Neuroscience, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (i) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (ii) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (A) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (B) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (C) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ ; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a) ~~hereof~~and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Eventbrite, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: [(ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred,~~ any other case,] (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though the disinterested directors represent less than a quorum of the Board, ; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors, even though less than a quorum of the Board,~~ directors; or (Ciii) if there are no disinterested directors or if the disinterested directors of the Board, by a majority vote of such ~~Disinterested Directors or~~disinterested directors, ~~if such Disinterested Directors~~ so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such ~~determination~~determination in accordance with Section 12(a)(iii). Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~Independent Counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. ~~Any~~ The Company shall likewise cooperate with Indemnitee and Independent Counsel, ~~member of the Board or stockholder of the Company shall act reasonably and in good faith~~ if applicable, in making a such determination ~~regarding the~~ with respect to Indemnitee’s entitlement to ~~indemnification under this Agreement~~indemnification, including providing to such counsel and Indemnitee, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Company and reasonably necessary to such determination. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ [; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee]. Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee [or the Company, as the case may be, ,] may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company [or to Indemnitee, as the case may be, ,] a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Florida Court (as hereinafter defined) has determined that such objection is without merit. If, in circumstances where an Independent Counsel is to be selected and within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the ~~Delaware~~ Florida Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ Florida Court or by such other person as the ~~Person~~ Florida Court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to the Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 1 contract

Sources: Indemnification Agreement (Faro Technologies Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. ~~(a)~~ Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~8(a), a determination~~, if required by applicable law~~, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the ~~Board~~Board of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, ; (B~~) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C~~) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, ; or (DC) ~~if so directed by the Board,~~ by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. ~~The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description~~ Notwithstanding Section 2 of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, mayAgreement, within ten (10) ~~business~~ days after ~~such~~ the Indemnitee’s provides written notice of his selection of Independent Counsel, the Company shall have ~~been received,~~ deliver to the ~~Company or to Indemnitee, as the case may be, a~~ Indemnitee any written objection to ~~such selection~~the selection of Independent Counsel; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~8(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, ~~either~~ the Company or the Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company ~~or Indemnitee~~ to the ~~other~~Indemenitee’s ~~selection~~ section of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~9(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~11(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Patriot Scientific Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors in writing that Indemnitee has requested indemnification. (b) Upon written request by Indemnitee for ~~indemnification pursuant to Section 11(b) hereof~~indemnification, a determination, if required by applicable law, with respect to Indemnitee’s 's entitlement thereto shall be made in the specific ~~case:~~ case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the ~~Board~~Company's board of directors, a copy of which shall be delivered to ~~Indemnitee;~~ Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board~~Company's board of directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board~~Company's board of directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the ~~Board~~Company's board of directors, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the ~~Board~~Company's board of directors, by the stockholders of the Company~~, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made ~~within~~ as soon as reasonably practicable, but in any event no later than ten (10) ~~business days~~ days, after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ ' fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the ~~Company~~ Company, to the extent permitted by applicable law (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied). (bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof~~10(b), the Independent Counsel shall be selected as provided in this Section ~~12(b~~10(c). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the ~~Board~~Company's board of directors, except in the case of a Change in Control, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee ~~(unless Indemnitee shall request that such selection be made by the Board),~~ and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so ~~selected. If the Independent Counsel is~~ selected (unless Indemnitee shall request that such selection be made by the ~~Board~~Company's board of directors, in which event the Company shall ~~give~~ provide written notice to the Indemnitee ~~advising him~~ of the identity of the Independent ~~Counsel so selected~~Counsel). In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section ~~2 hereof~~1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) ~~hereof~~hereof and (ii) the final disposition of the Proceeding, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s 's selection of Independent Counsel ~~and/or~~ and for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~court or by such other person as the court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (cd) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretoCounsel. (de) If the Company ~~disputes a portion~~ believes that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Company to indemnify Indemnitee for the amounts ~~for which indemnification is requested~~claimed, the ~~undisputed portion~~ Company may file an action in the Delaware Court of Chancery to obtain a declaratory judgment that Indemnitee is not entitled under applicable law to receive indemnification or advancement from the Company (a "Declaratory Action"). If the Delaware Court of Chancery issues an order or judgment in a Declaratory Action that Indemnitee is not entitled under applicable law to receive indemnification or advancement from the Company with respect to a Proceeding or any claim, issue or matter therein, the Company shall have no further obligation under this Agreement, the Company's certificate of incorporation or bylaws or other applicable laws, statutes or rules to provide indemnification or advances to Indemnitee with respect to such Proceeding, claim, issue or matter. In a Declaratory Action, the burden of proof shall be ~~paid and only~~ on the ~~disputed portion withheld pending resolution of any such dispute~~Company to establish that Indemnitee is not entitled to indemnification or advances.

Appears in 1 contract

Sources: Indemnification Agreement (Socket Mobile, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be ▇▇▇▇▇▇, Inc. Indemnification Agreement delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the Board, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware ▇▇▇▇▇▇, Inc. Indemnification Agreement Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Natera, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s 's entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the Board, by the stockholders of the Company. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or ~~(E) by a final adjudication by a court of competent jurisdiction~~basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ forty-five (1045) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Spectranetics Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon written request by Indemnitee for indemnification pursuant to Section 11(b) hereof, a determination, if required by applicable law,~~ A determination with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) if a Change in Control shall not have occurred, : (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee,~~ ; or (Div) if so directed by the Board, by the stockholders of the Company. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or ~~(E)~~ proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a ~~final adjudication by a court~~ copy of ~~competent jurisdiction. If~~ Independent Counsel’s written opinion shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the ~~Board. If~~ Board if a Change in Control shall not have occurred or, if a Change in Control shall have occurred, ~~the Independent Counsel shall be selected~~ by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (WisdomTree Investments, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon written request by~~ To the extent that Indemnitee ~~for indemnification pursuant~~ shall have been successful on the merits in any Proceeding to ~~Section 11(b) hereof~~which it is a party or a participant or in defense of any claim, ~~a determination~~issue or matter therein, if no determination shall be required ~~by applicable law,~~ to be made with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder. In all other cases, a determination with respect to Indemnitee’s entitlement to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have occurred, (i) by Independent Counsel in a written opinion to the ~~Board~~Board or (ii) if the Indemnitee so requests in writing, by a ~~copy~~ majority vote of ~~which shall be delivered to Indemnitee~~the disinterested directors, even though less than a quorum; or (iiy) if a Change in Control shall not have occurred, : (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee,~~ ; or (Div) if so directed by the Board, by the stockholders of the Company. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or ~~(E)~~ Proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a ~~final adjudication by a court~~ copy of ~~competent jurisdiction. If~~ Independent Counsel’s written opinion shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the ~~Board. If~~ Board if a Change in Control shall not have occurred or, if a Change in Control shall have occurred, ~~the Independent Counsel shall be selected~~ by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding ~~or arbitration~~ pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (CST Brands, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if directed by a majority vote of directors designated or nominated to the Board by the Yucaipa Stockholders (or if no such directors are then serving on the Board then the Yucaipa Stockholders), by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (E) if so directed by the Board, by the stockholders of the Company; and, ~~or (E) by a final adjudication by a court of competent jurisdiction. If~~ if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Allied Systems Holdings Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~10(b), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee~~, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the ~~Board~~Board of Directors, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the ~~Board~~Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction (the ~~Delaware Court (as defined below~~“Court”) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to ~~pay~~ pay: (i) the reasonable fees ~~and expenses~~ of Independent Counsel and to fully indemnify ~~and hold harmless~~ such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto; and (ii) any and all Expenses, claims liabilities and damages arising out of or relating to any Proceedings referred to in Section 11(b) hereof. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Northwestern Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b~~8(a) ~~hereof~~of this Agreement, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, : (A) by a majority vote of the ~~Disinterested~~ Reviewing Directors, even though less than a quorum of the Board, (B) by a committee of ~~Disinterested~~ Reviewing Directors designated by a majority vote of the ~~Disinterested~~ Reviewing Directors, even though less than a quorum of the ~~Board,~~ Board or (C) if there are no such ~~Disinterested~~ Reviewing Directors or, if such ~~Disinterested~~ Reviewing Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~9(a) ~~hereof~~of this Agreement, the Independent Counsel shall be selected as provided in this Section ~~12(b~~9(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by a majority vote of the Reviewing Directors, even though less than a quorum of the Board, or, if there are no such Reviewing Directors, by a majority of the entire Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Reviewing Directors or the entire Board, as applicable, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a) ~~hereof~~of this Agreement and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~court or by such other person as the court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~9(a) ~~hereof~~of this Agreement. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~10(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ In connection with any determination by Reviewing Directors or a committee thereof, or Independent Counsel, as the case may be, as to ~~pay~~ whether Indemnitee is entitled to be indemnified hereunder such party shall presume that the ~~reasonable fees~~ Indemnitee has satisfied the applicable standard of conduct and ~~expenses~~ is entitled to indemnification, and the burden of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If proof shall be on the Company ~~disputes~~ to establish, by a ~~portion~~ preponderance of the ~~amounts for which indemnification~~ evidence, that Indemnitee is ~~requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute~~not so entitled.

Appears in 1 contract

Sources: Indemnification Agreement (Bally Total Fitness Holding Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in accordance with this Section 11(a). Upon written request by Indemnitee for indemnification pursuant to the ~~specific case:~~ first sentence of Section 10(a), if a determination is not required by applicable law, the Company shall provide the requested determination in accordance with the terms and conditions of this Agreement. If (i) if a Change in of Control shall have occurred, or (ii) Indemnitee shall have delivered to the Company a written election to rely on the determination of Independent Counsel, then such determination shall be made by Independent Counsel in a written opinion to of the ~~Board,~~ Board and a copy of ~~which~~ such written opinion shall be delivered to Indemnitee; provided, however, that, if one or more Persons other than Indemnitee may also be entitled to indemnification from the Company under any other indemnification or similar agreement or other instrument in connection with the Proceeding with respect to which Indemnitee shall have requested indemnification pursuant to Section 10(a), such other Person or at least fifty percent (ii50%) ~~if a Change~~ of such other Persons, as applicable, shall also have elected to rely on the determination of Independent Counsel in ~~Control~~ accordance with the indemnification or similar agreement or other instrument applicable to each such other Person’s indemnification claim or shall ~~not~~ otherwise have ~~occurred~~agreed in writing to be bound by any such determination. In any other case, such determination shall be made (Ai) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (Bii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (Ciii) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (Div) if so directed by the Board, by the ~~stockholders~~ shareholders of the Company. If, ~~or (E) by a final adjudication by a court~~ in accordance with the foregoing provisions of ~~competent jurisdiction. If~~ this Section 11(a), it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. ~~The Company promptly will advise~~ As provided in Section 13(a) and 13(b), nothing in this Agreement, including any findings of Independent Counsel made pursuant to this Section 11, shall be deemed to limit or otherwise adversely impact the right of Indemnitee ~~in writing with respect~~ to commence any judicial proceeding or arbitration pursuant to Section 13. Further, any determination ~~that~~ made pursuant to this Section 11 shall not bind Indemnitee is or ~~is not entitled~~ prejudice Indemnitee’s rights to ~~indemnification, including~~ indemnification as finally determined by a ~~description of any reason~~ judicial proceeding or ~~basis for which indemnification has been denied~~arbitration. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Alico Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Board, by the common stockholders of the Company by the affirmative vote of the holders of a majority in voting power of the Company’s outstanding common stock, present in person or ~~(E)~~ represented by ~~a final adjudication by a court of competent jurisdiction. If~~ proxy; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Pc Tel Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon written request by Indemnitee for indemnification pursuant to Section 11(b) hereof, a~~ A determination, if but only if required by applicable law, with respect to Indemnitee’s 's entitlement ~~thereto~~ to indemnification shall be made in the specific ~~case~~case by one of the following methods, which shall be at the election of Indemnitee: (i1) ~~if a Change in Control shall have occurred,~~ by Independent Counsel in a written opinion to the ~~Board~~Board of Directors, a copy of which shall be delivered to Indemnitee~~; or (ii) if a Change in Control shall not have occurred~~, (A2) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B3) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board~~, (C) if there are no such Disinterested Directors or~~; and, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ five (105) business days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ ' and experts' fees and disbursements) paid or incurred or which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification) ), and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. ~~The Company promptly will advise Indemnitee in writing with respect~~ For the sake of clarity, no determination of entitlement shall be required to ~~any determination~~ the extent that Indemnitee is successful, on the merits or ~~is not entitled to indemnification~~otherwise (including by dismissal with or without prejudice), ~~including a description~~ in any Proceeding or in defense of any ~~reason~~ claim, issue or ~~basis for which indemnification has been denied~~matter therein, in whole or in part. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). ~~If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the~~ The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the ~~Board~~Board of Directors, in which event the immediately following sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten~~ five (105) business days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “"Independent Counsel” " as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the Delaware ~~Court~~Court or by such other person as the Delaware Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)~~. (c)~~ . The Company ~~agrees~~ shall use its reasonable best efforts to ~~pay~~ cause the ~~reasonable fees and expenses~~ determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating~~ indemnification to ~~this Agreement or its engagement pursuant hereto~~be made as promptly as practicable. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Readers Digest Association Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) if a Change in Control shall not have occurred, : (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though the disinterested directors represent less than a quorum of the Board, ; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~directors, ~~even though less than a quorum of the Board,~~ or (Ciii) if there are no disinterested directors or if the disinterested directors of the Board, by a majority vote of such ~~Disinterested Directors or~~disinterested directors, ~~if such Disinterested Directors~~ so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such ~~determination~~determination in accordance with Section 12(a)(iii). Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~Independent Counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. ~~Any~~ The Company shall likewise cooperate with Indemnitee and Independent Counsel, ~~member of the Board or stockholder of the Company shall act reasonably and in good faith~~ if applicable, in making a such determination ~~regarding the~~ with respect to Indemnitee’s entitlement to ~~indemnification under this Agreement~~indemnification, including providing to such counsel and Indemnitee, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Company and reasonably necessary to such determination. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the ~~Board. If~~ Board if a Change in Control shall not have occurred or, if a Change in Control shall have occurred, ~~the Independent Counsel shall be selected~~ by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Florida Court (as hereinafter defined) has determined that such objection is without merit. If, in circumstances where an Independent Counsel is to be selected and within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the ~~Delaware~~ Florida Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ Florida Court or by such other person as the ~~Person~~ Florida Court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 1 contract

Sources: Indemnification Agreement (Faro Technologies Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~12(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested ~~Directors~~Managers, even though less than a quorum of the Board, (B) by a committee of Disinterested ~~Directors~~ Managers designated by a majority vote of the Disinterested ~~Directors~~Managers, even though less than a quorum of the Board, or (C) if there are no such Disinterested ~~Directors or, if such Disinterested Directors so direct~~Managers, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee~~, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses ~~(including attorneys’ fees and disbursements)~~ incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) ), and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof~~13(a), the Independent Counsel shall be selected as provided in this Section ~~12(b~~13(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements ~~of “Independent Counsel” as defined~~ set forth in Section ~~2 hereof~~1(m), and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the ~~Independent Counsel~~ counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~12(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~13(a) hereof. Upon the due commencement of any ~~judicial proceeding or arbitration~~ Proceeding pursuant to Section ~~14(a) of this Agreement~~15(a), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Safeway Stores 42, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof~~11(a), the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising [him][her] of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~2, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) ~~hereof~~and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a) hereof~~11(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a) of this Agreement~~13(a), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Darling International Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. ~~Any~~ The Company shall likewise cooperate with Indemnitee and Independent Counsel, ~~member of the Board or stockholder of the Company shall act reasonably and in good faith~~ if applicable, in making a such determination ~~regarding the~~ with respect to Indemnitee’s entitlement to ~~indemnification under this Agreement~~indemnification, including providing to such counsel and Indemnitee, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Company and reasonably necessary to such determination. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ [; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee]. Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee [or the Company, as the case may be, ,] may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company [or to Indemnitee, as the case may be, ,] a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a) ~~hereof~~and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the ~~Delaware Court, and~~ court or by such other Person as the court shall designate. The Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to the Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 1 contract

Sources: Indemnification Agreement (Generate Biomedicines, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. ~~Any~~ The Company shall likewise cooperate with Indemnitee and Independent Counsel, ~~member of the Board or stockholder of the Company shall act reasonably and in good faith~~ if applicable, in making a such determination ~~regarding the~~ with respect to Indemnitee’s entitlement to ~~indemnification under this Agreement~~indemnification, including providing to such counsel and Indemnitee, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Company and reasonably necessary to such determination. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ ; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a) ~~hereof~~and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the ~~Delaware Court, and~~ court or by such other Person as the court shall designate. The Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) ~~The Company agrees~~ Notwithstanding anything to ~~pay~~ the ~~reasonable fees and expenses~~ contrary contained in this Agreement, the determination of ~~Independent Counsel and~~ entitlement to ~~fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to~~ indemnification under this Agreement ~~or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion~~ shall be ~~paid~~ made without regard to the Indemnitee’s entitlement to and ~~only~~ availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the ~~disputed portion withheld pending resolution~~ provisions of any applicable insurance policy (including, without limitation, whether such ~~dispute~~advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).

Appears in 1 contract

Sources: Indemnification Agreement (Factorial Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to ~~Section 11(b) hereof~~this Agreement, a determination, if required by applicable law, with respect to Indemnitee’s 's entitlement thereto shall be made promptly in the specific case: (i) if a Change in Control ~~shall have~~ has occurred, by Independent ~~Counsel in a written opinion to the Board~~Counsel, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by Indemnitee and approved by the Board in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval shall not be unreasonably withheld; or (Dii) if a Change in Control has not occurred, (A) by the Board by a majority vote of a quorum consisting of Disinterested Directors or, if such a quorum cannot be obtained, then by a majority vote of a duly-authorized committee of the Board consisting solely of one or more Disinterested Directors designated by the Disinterested Directors to make the determination, (B) if Independent Counsel, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by the Board in accordance with Section 2-418(e)(2)(ii) of the MGCL and approved by Indemnitee, which approval shall not be unreasonably withheld or delayed, by Independent Counsel, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee , or (C) if so directed by a majority of the members of the Board, by the stockholders of the Company~~, or~~ . (Eb) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) business days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied~~. (b) In~~ , other than directors or officers who are parties to the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b)Proceeding. If ~~a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by~~ it is so determined that Indemnitee ~~(unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice~~ is entitled to ~~the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board~~indemnification, the Company shall ~~give written notice~~ make payment to Indemnitee ~~advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may,~~ within ten (10) ~~business~~ days after such ~~written notice of selection~~ determination. Indemnitee shall ~~have been received~~reasonably cooperate with the Person, ~~deliver to the Company~~ Persons or ~~to Indemnitee, as the case may be, a written objection to~~ entity making such selection; provided, however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 hereof, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) business days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined below) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the Delaware Court, and the Person determination with respect to ~~whom all objections are so resolved~~ Indemnitee’s entitlement to indemnification, including providing to such Person, Persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary or appropriate to such determination in the ~~Person so appointed shall act as~~ discretion of the Board or Independent Counsel ~~under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration~~ if retained pursuant to clause (ii)(B) of Section ~~14(a~~13(a) of this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the Person, ~~Independent Counsel~~ Persons or entity making such determination shall be ~~discharged~~ borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and ~~relieved of any further responsibility in such capacity (subject~~ the Company hereby indemnifies and agrees to ~~the applicable standards of professional conduct then prevailing)~~hold Indemnitee harmless therefrom. (c) The Company agrees to pay the reasonable fees and ~~expenses~~ Expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Kimco Realty OP, LLC)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon written request~~ A determination with respect to Indemnitee’s entitlement to indemnification in the specific case shall be made by ~~Indemnitee for indemnification pursuant to Section 11(b) hereof~~the Company and, ~~a determination,~~ if but only if required by applicable law, ~~with respect to Indemnitee’s entitlement thereto~~ one of the following methods, which shall be ~~made in~~ at the ~~specific case~~election of Indemnitee: (i1) ~~if a Change in Control shall have occurred,~~ by Independent Counsel in a written opinion to the ~~Board~~Board of Directors, a copy of which shall be delivered to Indemnitee~~; or (ii) if a Change in Control shall not have occurred~~, (A2) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (B3) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board~~, (C) if there are no such Disinterested Directors or~~; and, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ five (105) business days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ and experts’ fees and disbursements) paid or incurred or which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) ), and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. ~~The Company promptly will advise Indemnitee in writing with respect~~ For the sake of clarity, no determination of entitlement shall be required to ~~any determination~~ the extent that Indemnitee is successful, on the merits or ~~is not entitled to indemnification~~otherwise (including by dismissal with or without prejudice), ~~including a description~~ in any Proceeding or in defense of any ~~reason~~ claim, issue or ~~basis for which indemnification has been denied~~matter therein, in whole or in part. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~11(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~11(b). ~~If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the~~ The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the ~~Board~~Board of Directors, in which event the immediately following sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten~~ five (105) business days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within ~~twenty (20) business~~ 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the Delaware ~~Court~~Court or by such other person as the Delaware Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). The Company shall use its reasonable best efforts to cause the determination of entitlement to indemnification to be made as promptly as practicable. (c) The Company agrees to pay the reasonable fees and expenses of the Independent Counsel (including such fees and expenses incurred in connection with the Independent Counsel’s determination pursuant to Section 11(a)) and to fully indemnify ~~and hold harmless~~ such ~~Independent Counsel~~ counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Joy Global Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors in writing that Indemnitee has requested indemnification. (b) Upon written request by Indemnitee for ~~indemnification pursuant to Section 11(b) hereof~~indemnification, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific ~~case:~~ case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the ~~Board~~Company’s board of directors, a copy of which shall be delivered to ~~Indemnitee;~~ Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board~~Company’s board of directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the ~~Board~~Company’s board of directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the ~~Board~~Company’s board of directors, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the ~~Board~~Company’s board of directors, by the stockholders of the Company~~, or (E) by a final adjudication by a court of competent jurisdiction~~. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made ~~within~~ as soon as reasonably practicable, but in any event no later than ten (10) ~~business days~~ days, after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied). (bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof~~10(b), the Independent Counsel shall be selected as provided in this Section ~~12(b~~10(c). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the ~~Board~~Company’s board of directors, except in the case of a Change in Control, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee ~~(unless Indemnitee shall request that such selection be made by the Board),~~ and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so ~~selected. If the Independent Counsel is~~ selected (unless Indemnitee shall request that such selection be made by the ~~Board~~Company’s board of directors, in which event the Company shall ~~give~~ provide written notice to the Indemnitee ~~advising him~~ of the identity of the Independent ~~Counsel so selected~~Counsel). In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~10(a) ~~hereof~~hereof and (ii) the final disposition of the Proceeding, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel ~~and/or~~ and for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~court or by such other person as the court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (cd) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretoCounsel. (de) If the Company ~~disputes a portion~~ believes that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Company to indemnify Indemnitee for the amounts ~~for which indemnification is requested~~claimed, the ~~undisputed portion~~ Company may file an action in the Delaware Court of Chancery to obtain a declaratory judgment that Indemnitee is not entitled under applicable law to receive indemnification or advancement from the Company (a “Declaratory Action”). If the Delaware Court of Chancery issues an order or judgment in a Declaratory Action that Indemnitee is not entitled under applicable law to receive indemnification or advancement from the Company with respect to a Proceeding or any claim, issue or matter therein, the Company shall have no further obligation under this Agreement, the Company’s certificate of incorporation or bylaws or other applicable laws, statutes or rules to provide indemnification or advances to Indemnitee with respect to such Proceeding, claim, issue or matter. In a Declaratory Action, the burden of proof shall be ~~paid and only~~ on the ~~disputed portion withheld pending resolution of any such dispute~~Company to establish that Indemnitee is not entitled to indemnification or advances.

Appears in 1 contract

Sources: Indemnification Agreement (Intevac Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (D) if so directed by the Board, by the common stockholders of the Company by the affirmative vote of the holders of a majority in voting power of the Company’s outstanding common stock, present in person or ~~(E)~~ represented by ~~a final adjudication by a court of competent jurisdiction. If~~ proxy; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Air Lease Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section ~~11(b~~11(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the ~~Board~~Board of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the ~~Board~~Board of Directors, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the ~~Board~~Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it ~~of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him~~ of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ~~ten (10) business~~ 10 days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~2(g) of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court ~~of competent jurisdiction~~ has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~court or by such other person as the court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Carpenter Technology Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, no indemnification shall be made under this Agreement without a determination made in accordance with Section 8.55 of the Act that the Indemnitee has met the relevant standard of conduct set forth in Section 8.51 of the Act. Upon receipt of Indemnitee’s written request ~~by Indemnitee~~ for indemnification pursuant to Section ~~11(b) hereof~~9(c), a ~~determination, if required by applicable law,~~ determination with respect ~~to Indemnitee’s entitlement~~ thereto shall be made in the specific ~~case~~case by one of the following methods: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, (Bii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, or (Ciii) if there are no ~~such~~ Disinterested Directors ~~or,~~ or if ~~such~~ the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (Div) by a majority of disinterested shareholders of the Company. Notwithstanding the above, if ~~so directed~~ a determination with respect to Indemnitee’s right to indemnification is to be made following a Change of Control, such determination shall be made in the specific case by Independent Counsel in a written opinion to the Board, ~~by the stockholders~~ a copy of ~~the Company, or (E) by a final adjudication by a court of competent jurisdiction~~which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the ~~person~~Disinterested Directors or Independent Counsel, ~~persons or entity~~ as the case may be, making such determination shall be advanced and borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company ~~hereby indemnifies~~ is liable to indemnify and ~~agrees to~~ hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~10(a) hereof, the Independent Counsel shall be selected ~~as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected~~ by the ~~Board~~Company in accordance with applicable law. ~~If a Change in Control shall have occurred, the Independent Counsel shall be selected by~~ The Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company ~~or to Indemnitee, as the case may be,~~ a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion~~. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel~~. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a ~~court of competent jurisdiction~~ Massachusetts Court (as defined in Section 22) has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, ~~either the Company or~~ Indemnitee may petition the ~~Delaware Court (as defined below)~~ Massachusetts Courts for resolution of any objection which shall have been made by ~~the Company or~~ Indemnitee to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (TransMedics Group, Inc.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of Indemnitee’s written request ~~by Indemnitee~~ for indemnification pursuant to Section ~~11(b) hereof~~9(c), a ~~determination, if required by applicable law,~~ determination with respect ~~to Indemnitee’s entitlement~~ thereto shall be made in the specific ~~case~~case by one of the following three methods, which shall be at the election of the Board, within forty-five (45) days of the Company’s receipt of Indemnitee’s written request for indemnification hereunder: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, (Bii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a ~~quorum of the Board~~quorum, (Ciii) if there are no ~~such~~ Disinterested Directors ~~or,~~ or if ~~such~~ a majority of Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (Div) ~~if so directed by the Board,~~ by the stockholders of the Company. Notwithstanding the above, ~~or (E)~~ if a determination with respect to Indemnitee’s right to indemnification is to be made following a Change of Control, such determination shall be made in the specific case by Independent Counsel in a ~~final adjudication by~~ written opinion to the Board, a ~~court~~ copy of ~~competent jurisdiction~~which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ sixty (1060) ~~business~~ days ~~after such determination~~of the Company’s receipt of Indemnitee’s written request for indemnification. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or ~~Expenses~~ expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the ~~person~~Disinterested Directors or Independent Counsel, ~~persons or entity~~ as the case may be, making such determination shall be advanced and borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company ~~hereby indemnifies~~ is liable to indemnify and ~~agrees to~~ hold Indemnitee harmless therefrom. The Company ~~promptly will advise Indemnitee in writing with respect~~ agrees to ~~any determination that Indemnitee is or is not entitled~~ pay the reasonable fees and expenses of the Independent Counsel referred to ~~indemnification, including a description of any reason or basis for which indemnification has been denied~~above. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a~~10(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~10(b). ~~If a Change in Control shall not have occurred, the~~ The Independent Counsel shall be selected by the ~~Board. If a Change in Control~~ Board and the Board shall ~~have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give~~ provide written notice to the ~~Company advising it~~ Indemnitee of the identity of the Independent Counsel so selected. ~~If the Independent Counsel is~~ Such counsel selected by the ~~Board, the Company~~ Board shall ~~give written notice~~ certify to Indemnitee ~~advising him~~ in writing that it meets the definition of ~~the identity of the~~ “Independent ~~Counsel so selected~~Counsel” provided herein. ~~In either event,~~ Indemnitee ~~or the Company, as the case may be,~~ may, within ten (10) ~~business~~ days after such written notice of selection shall have been received, deliver to the Company ~~or to Indemnitee, as the case may be,~~ a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If ~~such~~ a written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(c) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition ~~the Delaware Court (as defined below)~~ a court of competent jurisdiction for resolution of any objection which shall have been made by the ~~Company or~~ Indemnitee to the ~~other~~Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court~~Court or by such other person as the Court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing)~~. (c)~~ . The Company ~~agrees to~~ shall pay ~~the~~ all reasonable fees and expenses incident to the procedures of ~~Independent Counsel and to fully indemnify and hold harmless~~ this Section 10(b), regardless of the manner in which such Independent Counsel ~~against any and all Expenses, claims, liabilities and damages arising out of~~ was selected or ~~relating to this Agreement or its engagement pursuant hereto~~appointed. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Affiliated Managers Group Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section 11(b) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (D) if so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) business days after such determination. Indemnitee shall reasonably cooperate with the person, ~~persons~~ persons, or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the ~~Board~~ Board, or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, ~~persons~~ persons, or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) business days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 hereof, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) business days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined below) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a Person selected by the Delaware Court, and the Person with respect to whom all objections are so resolved or the Person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, ~~liabilities~~ liabilities, and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnity Agreement (Blue Bird Corp)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon ~~written request~~ delivery of the Indemnification Notice by Indemnitee ~~for indemnification pursuant to~~ under Section ~~11(b) hereof~~11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made ~~in the specific case~~with respect to such request as follows: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (Bii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (Ciii) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to ~~Indemnitee,~~ Indemnitee or (Div) if so directed by the Board, by the stockholders of the Company; provided, however, that, notwithstanding the foregoing, in all cases, Indemnitee shall have the option, but not the obligation, to require, by delivery of a written request to the Company, that the determination with respect to Indemnitee’s entitlement to indemnification hereunder be made solely by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee (in which case such request shall be made prior to any determination by the Disinterested Directors (or any committee thereof) or prior to the submission of such matter to a vote by the stockholders of the Company). (Eb) ~~by a final adjudication by a court of competent jurisdiction.~~ If it is so determined pursuant to Section 12(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance written request any documentation or information ~~which~~ that is not privileged or otherwise protected from disclosure and ~~which~~ that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or Expenses ~~(including attorneys’ fees and disbursements)~~ incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section ~~12(b~~12(c)~~. If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board~~. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the following sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so ~~selected. If~~ selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If a Change in Control shall not have occurred and the determination with respect to Indemnitee’s entitlement to indemnification hereunder is to be made by Independent Counsel pursuant to Section 12(a)(iii), the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so ~~selected~~selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after such written notice of selection shall have been ~~received~~given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~2(g) of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of ~~a written request for indemnification~~ an Indemnification Notice pursuant to Section ~~11(b~~11(a) ~~hereof~~hereof and (ii) the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection ~~which shall have been~~ made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by ~~the Delaware Court~~such court or by such other person as such court shall designate, and the ~~Person~~ person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Leap Wireless International Inc)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) ~~Upon~~ To obtain indemnification under this Agreement, the Indemnified Party shall submit to the Corporation a written request therefor specifying the basis for the claim, the amounts for which the Indemnified Party is seeking payment under this Agreement, and all documentation related thereto as reasonably requested by ~~Indemnitee for indemnification pursuant to Section 11(b) hereof, a determination, if required by applicable law,~~ the Corporation. A determination with respect to ~~Indemnitee~~the Indemnified Party’s entitlement ~~thereto~~ to indemnification hereunder shall then be made in the specific ~~case~~case by one of the following methods: (ix) ~~if a Change in Control shall have occurred,~~ by Independent Counsel in a written opinion to the ~~Board, a copy~~ board of ~~which shall be delivered to Indemnitee~~directors of the Corporation if the Indemnified Party so requests; or (iiy) by the Company if ~~a Change in Control shall~~ the Indemnified Party does not ~~have occurred,~~ so request such determination: (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the ~~Board, a copy~~ board of ~~which shall be delivered to Indemnitee,~~ directors of the Corporation; (Div) if so directed by the ~~Board~~board of directors of the Corporation, by ~~the stockholders~~ a majority vote of a quorum of the ~~Company~~outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the Claim in question; or (Ev) the Ontario Court. For purposes hereof, disinterested directors are those members of the board of directors of the Corporation who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a ~~final adjudication by a court~~ copy of ~~competent jurisdiction. If~~ Independent Counsel’s written opinion shall be delivered to the Indemnified Party and, if it is so determined that ~~Indemnitee~~ the Indemnified Party is entitled to indemnification, payment to ~~Indemnitee~~ the Indemnified Party shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. ~~Indemnitee~~ The Indemnified Party shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Corporation, ~~persons or entity~~ as applicable, in making such determination with respect to ~~Indemnitee~~the Indemnified Party’s entitlement to indemnification, including providing to such ~~person~~counsel or the Corporation, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to ~~Indemnitee~~ the Indemnified Party and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by ~~Indemnitee~~ the Indemnified Party in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Corporation shall be borne by the ~~Company~~ Corporation (irrespective of the determination as to ~~Indemnitee~~the Indemnified Party’s entitlement to indemnification) and the ~~Company~~ Corporation hereby indemnifies and agrees to hold ~~Indemnitee~~ the Indemnified Party harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~2.3(a)(x)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the ~~Board. If a Change in Control shall have occurred~~Indemnified Party and if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 2.3(a)(y)(iii), the Independent Counsel shall be selected by ~~Indemnitee (unless Indemnitee shall request that such selection be made by~~ the ~~Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected~~Corporation. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event, Indemnitee The Indemnified Party or the ~~Company~~Corporation, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the ~~Company or to Indemnitee, as the case may be,~~ Indemnified Party a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section ~~2 hereof~~1.1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Ontario Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by ~~Indemnitee~~ the Indemnified Party of a written request for indemnification pursuant to Section ~~11(b~~2.3(a), and (ii) ~~hereof~~the final disposition of the Claim, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either the ~~Company~~ Indemnified Party or ~~Indemnitee~~ the Corporation may petition the ~~Delaware~~ Ontario Court ~~(as defined below)~~ for resolution of any objection which shall have been made by the ~~Company or Indemnitee~~ Corporation to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~2.3(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a)~~ 2.5 of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnity Agreement (PointClickCare Corp.)

PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section ~~11(b) hereof~~9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement ~~thereto~~ to indemnification hereunder shall be made in the specific ~~case~~case by one of the following methods: (ix) if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board~~, a copy of which shall be delivered to Indemnitee~~; or (iiy) ~~if a Change~~ in ~~Control shall not have occurred~~any other case, (Ai) by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; (Bii) by a committee of ~~Disinterested Directors~~ disinterested directors designated by a majority vote of the ~~Disinterested Directors~~disinterested directors, even though less than a ~~quorum of the Board,~~ quorum; or (Ciii) if there are no ~~such Disinterested Directors or,~~ disinterested directors or if ~~such Disinterested Directors~~ the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of ~~which~~ Independent Counsel’s written opinion shall be delivered to ~~Indemnitee~~Indemnitee and, ~~(D)~~ if ~~so directed by the Board, by the stockholders of the Company, or (E) by a final adjudication by a court of competent jurisdiction. If~~ it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ~~ten~~ thirty (1030) ~~business~~ days after such determination. Indemnitee shall ~~reasonably~~ cooperate with the ~~person~~Independent Counsel or the Company, ~~persons or entity~~ as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such ~~person~~counsel or the Company, ~~persons or entity~~ upon reasonable advance ~~request~~ request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any out-of-pocket costs or ~~Expenses~~ expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the ~~person, persons~~ Independent Counsel or ~~entity making such determination~~ the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. (b) ~~In the event~~ If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section ~~12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b~~10(a)~~. If a Change in Control shall not have occurred~~, the Independent Counsel shall be selected by the Board~~. If~~ ; provided that, if a Change in Control shall have ~~occurred~~occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as [a director or](1) an officer of the Company, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedIndemnitee. ~~If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected. In either event,~~ Indemnitee or the Company, as the case may be, may, within ten (10) ~~business~~ days after ~~such~~ written notice of ~~selection shall have been received~~such selection, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, ~~however~~ however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 ~~hereof~~of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the ~~Person~~ person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or ~~a court of competent jurisdiction~~ the Delaware Court has determined that such objection is without merit. If, within twenty (20) ~~business~~ days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section ~~11(b~~9(a), and (ii) ~~hereof~~the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected ~~and not objected to~~without objection, either Indemnitee or the Company ~~or Indemnitee~~ may petition the Delaware Court ~~(as defined below)~~ for resolution of any objection which shall have been made by Indemnitee or the Company ~~or Indemnitee~~ to the ~~other’s~~ selection of Independent Counsel and/or for the appointment as Independent Counsel of a ~~Person~~ person selected by the ~~Delaware Court, and~~ court or by such other person as the ~~Person~~ court shall designate. The person with respect to whom all objections are so resolved or the ~~Person~~ person so appointed shall act as Independent Counsel under Section ~~12(a~~10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section ~~14(a~~12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. (d) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Appears in 1 contract

Sources: Indemnification Agreement (Braeburn Pharmaceuticals, Inc.)

Common use of PROCEDURE UPON APPLICATION FOR INDEMNIFICATION Clause in Contracts