PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 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 (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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. (b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Marketaxess Holdings Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of a written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a) (the “Submission Date”), a determination, if any determination by the Corporation is required by applicable law, law with respect to Indemnitee’s ultimate entitlement thereto to indemnification, such determination 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if Corporation. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity Person(s) making such determination with respect to Indemnitee’s entitlement to indemnification, including including, without limitation, providing to such personPerson(s), 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses incurred by Indemnitee in so cooperating with the person, persons or entity Person(s) making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Corporation will not deny any written request for indemnification hereunder made in good faith by Indemnitee unless a determination as to Indemnitee’s entitlement to such indemnification described in this Section 11(a) has been made. The Corporation agrees to pay Expenses of the Independent Counsel referred to above and to fully indemnify the Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(b) In the event that the determination of entitlement to indemnification is to be made by the Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall has not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company Corporation shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have has occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company Corporation advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the CompanyCorporation, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company Corporation 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 1(a) 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 the Delaware Court of Chancery has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company Corporation or Indemnitee may petition a court the Delaware Court of competent jurisdiction Chancery for resolution of any objection which shall have been made by the Company Corporation or Indemnitee to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court such court or by such other person as the Court such 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
Indemnitee; or (DC) if so directed by the Board, by the stockholders shareholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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
Appears in 1 contract
Sources: Indemnification Agreement (White Electronic Designs Corp)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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 selectedIndemnitee. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person Person as the Court court shall designate, and the person . The Person with respect to whom all objections are so resolved or the person Person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) 12.1. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)11, 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses Expenses (including attorneys’ fees and expenses 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) 12.2. In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof12.1, the Independent Counsel shall be selected as provided in this Section 11(b)12.2. If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 of this Agreement2, 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 the Delaware Court has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof11.1 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 a court of competent jurisdiction the Delaware 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 selected by the Court such court or by such other person as the Court such 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 11(a) hereof12.1. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) 14.1 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).
12.3. 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
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by an Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to such Indemnitee; 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 Indemnitee, or
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that an Indemnitee is entitled to indemnification, payment to such Indemnitee shall be made within ten (10) 10 days after such determination. Each Indemnitee shall cooperate with the person, persons Person or entity Persons making such determination with respect to such Indemnitee’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 such Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses incurred by such Indemnitee 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 such Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold such Indemnitee harmless therefrom.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). follows:
(i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to the Indemnitee advising Indemnitee 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 the Indemnitee (unless Indemnitee he shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding sentence shall apply), and such Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to such 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 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 has determined that such objection is without merit. If, within 20 days after submission by such Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or such Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or such Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person Person selected by the Court or by such other person 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Note Purchase Agreement (Angiotech Pharmaceuticals Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Director Indemnification Agreement (Adicet Bio, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a14(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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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 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).
(b) If it is so determined pursuant to Section 15(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a15(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b15(c). If a Change in Control shall not have occurred, the occurred or if Indemnitee otherwise elects to require determination with respect to Indemnitee’s entitlement to indemnification hereunder to be made by Independent Counsel shall be selected by the Board of Directors, 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 occurredCounsel, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding 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 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 15(a)(iii), or if Indemnitee shall otherwise request, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a14(a) hereofhereof 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 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 selected by the 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 11(a15(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a17(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Directors, a copy of which shall be delivered to Indemnitee; or
or (ii) if a Change in Control shall not have occurred,
, (A) by a majority vote of a quorum consisting of the Disinterested Directors, even though less than a quorum of the Board,
Directors or (B) by a committee of Disinterested Directors designated by a majority vote of if the Disinterested Directorsquorum described in (A) is not obtainable, even though less than a quorum of the Board,
(C) or if there are no such Disinterested Directors orDirectors, or if such a majority vote of a quorum of Disinterested Directors so directdirects, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
or (C) if so directed by the Board, by the shareholders of the Company or (D) if so directed by the Board, by the stockholders of court in which the CompanyProceeding was brought; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the Court court or by such other person as the Court 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Oglebay Norton Co /Ohio/)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 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
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determinationIndemnitee. Indemnitee shall 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 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of DirectorsIndemnitee, 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 of Directors, in which event the preceding sentence shall apply)Board, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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
Appears in 1 contract
Sources: Officer Indemnification Agreement (Kiromic Biopharma, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)9(a) above, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case:
: (i) if a Change in Control shall have occurred, by Independent Counsel Counsel, in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved by the Board in accordance with the DGCL, which approval will not be unreasonably withheld; or
or (ii) if a Change in Control shall not have occurred,
, (A) by the Board by a majority vote of the Disinterested Directors, even though less than a quorum consisting 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 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 so directDirectors, (B) if Independent Counsel has been selected by the Board in accordance with the DGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld, conditioned or delayed, by Independent Counsel Counsel, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
or (DC) if so directed by a majority of the members of the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 determinationdetermination in the discretion of the Board or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(a). Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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 shall indemnify and agrees to hold Indemnitee harmless therefrom.
(b) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is appointed.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, (i) the Independent Counsel shall be selected by the Board Company within ten (10) days of Directorsthe Submission Date (the cost of each such counsel to be paid by the Company), and the Company (ii) 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 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. In either event, selected and (iii) Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a ’s 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 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 a written objection is so made and substantiatedby Indemnitee, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without meritwithdrawn. If, within 20 If no Independent Counsel shall have been selected and not objected to before the later of (i) thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a) hereofhereof (the “Submission Date”) and (ii) ten (10) days after the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either each of the Company and Indemnitee shall select a law firm or Indemnitee may petition member of a court of competent jurisdiction for resolution of any objection which shall have been made by law firm meeting the Company or Indemnitee qualifications to the other’s selection of Independent Counsel and/or for the appointment serve as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateCounsel, and such law firms or members of law firms shall select the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereofCounsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
Sources: Indemnification Agreement (Hydrofarm Holdings Group, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; 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 Indemnitee, or
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). If follows.
(i) if a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee him/her of the identity of the Independent Counsel so selected. If .
(ii) if a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee he/she shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Ann Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 bore 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may bemaybe, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; , and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee lndemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).written
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a A determination, if required by applicable lawlaw and/or by the Charter, with respect to Indemnitee’s entitlement thereto to indemnification shall be made in the specific case:
case by one of the following methods: (i) if a no Change in Control shall have has occurred, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(Ax) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board,
, (By) 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 (Cz) if there are no such Disinterested Directors orDirectors, 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
Indemnitee; or (Dii) if so directed a Change in Control has occurred, by Independent Counsel in a written opinion to the Board, by the stockholders a copy of the Company; andwhich shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, if including a description of any reason or 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 (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 is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses Expenses (including reasonable 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall applyBoard), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedselected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so 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 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) 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 Cayman 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 selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; , and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 lndemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee lndemnitee may petition 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 selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
Indemnitee; or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof 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 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
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. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)indemnification, a determination, if required by applicable law, with respect to the Indemnitee’s entitlement thereto shall be made in the specific caseas follows:
(i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(A1) by a majority of Disinterested Directors, even though less than a quorum, or (2) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board,
quorum, 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,
(C3) if there are no such Disinterested Directors orDirectors, or if such the Disinterested Directors so direct, by Independent Counsel Counsel, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
Indemnitee, (D4) if a majority of the Disinterested Directors so directed by the Boarddirects, by a majority vote of the stockholders of the Company; and, or (5) if it there shall have occurred a Reorganization Event within two years prior to the date of the commencement of the Proceeding for which indemnification is so determined that Indemnitee is entitled to indemnificationclaimed, payment to Indemnitee shall be made within ten (10) days after such determinationby an Independent Counsel selected by Indemnitee. Indemnitee shall 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 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control Reorganization Event shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 Reorganization Event shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 a court of competent jurisdiction the Delaware 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 selected by the Court such court or by such other person as the Court such 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware 2 Bracketed portions for CEO Director version only Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Director Indemnification Agreement (Kymera Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination9(a) hereof, if any determination by the Company is required by applicable law, law with respect to Indemnitee’s entitlement thereto thereto, such determination shall be made in the specific case:
(i) if a Change in Control Indemnitee shall have occurredrequest such determination be made by Independent Counsel, by Independent Counsel Counsel, and (i) in a written opinion to the Board of Directorsall other circumstances, 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,
, (BA) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board,
, (CA) 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
Indemnitee, or (DA) if so directed by the Board, by the stockholders of the CompanyCompany holding a majority of the securities of the Company present at a meeting of the stockholders and entitled to vote; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall shall, to the fullest extent permitted by law, 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 will not deny any written request for indemnification hereunder made in good faith by Indemnitee unless a determination as to Indemnitee’s entitlement to such indemnification described in this Section 10(a) has been made. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Liabilities and Expenses arising out of or relating to this Agreement or its engagement pursuant hereto.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, (i) the Independent Counsel shall be selected by the Board Company within ten (10) days of Directorsthe Submission Date (the cost of such Independent Counsel to be paid by the Company), and (i) 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 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. In either event, selected and (i) Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a ’s written objection to such selection; provided, however, that such . Such objection by Indemnitee 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. If such written objection is made and substantiated, the Independent Counsel selected shall not serve as Independent Counsel unless and until Indemnitee withdraws the objection shall set forth with particularity the factual basis of or a court has determined that such assertionobjection is without merit. 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected toto before the later of (A) thirty (30) days after the Submission Date and (B) ten (10) days after the final disposition of the Proceeding, either including any appeal therein, each of the Company and Indemnitee shall select a law firm or Indemnitee may petition member of a court of competent jurisdiction for resolution of any objection which shall have been made by law firm meeting the Company or Indemnitee qualifications to the other’s selection of Independent Counsel and/or for the appointment serve as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateCounsel, and such law firms or members of law firms shall select the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereofCounsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)8, 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 grounds that (1) the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertionassertion or (2) in the case of an Independent Counsel selected by the Indemnitee, the Independent Counsel is not reasonably acceptable to the Company. 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof8 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 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnity Agreement (Davita Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; 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 Indemnitee, or
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). follows:
(i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 (unless Indemnitee he shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Global Consumer Acquisition Corp.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon To the extent that Indemnitee is successful on the merits in any Proceeding to which Indemnitee is a party or a participant or in defense of any Proceeding, claim, issue or matter therein, no determination shall be required to be made with respect to Indemnitee’s entitlement to be indemnified or held harmless hereunder with respect to such Proceeding, claim, issue or matter.
(b) In all other cases, upon written request by Indemnitee for indemnification to be indemnified or held harmless pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
, 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,
, (BA) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board,
, (CB) 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
Indemnitee, or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnificationbe indemnified or held harmless, payment to Indemnitee shall be made as soon as practicable but in any event within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnificationbe indemnified or held harmless, 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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 indemnificationbe indemnified or held harmless) and the Company hereby indemnifies and agrees to indemnify and 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 be indemnified or held harmless, including a description of any reason or basis for which Indemnitee’s request to be indemnified or held harmless has been denied.
(bc) In the event the determination of Indemnitee’s entitlement to indemnification be indemnified or held harmless is to be made by Independent Counsel pursuant to Section 11(a11(b) hereof, the Independent Counsel shall be selected as provided in this Section 11(b11(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification to be indemnified or held harmless pursuant to Section 10(a) hereofhereof 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 a court of competent jurisdiction the Delaware 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 selected by the Delaware Court or by such other person as the Delaware 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 11(a11(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
(d) The Company agrees to pay the reasonable fees and expenses of Independent Counsel.
Appears in 1 contract
Sources: Indemnification Agreement (Texas Capital Bancshares Inc/Tx)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 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
(D) if so directed by the Board, by the stockholders All payments on account of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee ’s indemnification obligations under this Agreement shall be made within ten (10) 60 days after such determination. Indemnitee shall cooperate with of Indemnitee’s written request therefor unless a Determination is made that the person, persons or entity making such determination with respect claims giving rise to Indemnitee’s entitlement request are excluded claims under Section 7 of this Agreement or are otherwise not payable under this Agreement, provided that all payments on account of the Company’s obligation to indemnification, including providing pay Expenses under Section 8 of this Agreement prior to such person, persons or entity upon reasonable advance request the final disposition of 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination claim shall be borne by the Company (irrespective of the determination made as provided in Section 8 and such obligation shall not be subject to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefromany such Determination.
(b) In the event the determination of entitlement Company takes the position that Indemnitee is not entitled to indemnification is in connection with a proposed settlement of any claim, Indemnitee shall have the right at Indemnitee’s own expense to be made undertake defense of any such claim, insofar as such proceeding involves claims against the Indemnitee, by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice given to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or has notified Indemnitee in writing of its contention that Indemnitee is not entitled to Indemnitee, as the case may be, a written objection to such selectionindemnification; provided, however, that the failure to give such objection may notice within such 10-day period shall not affect or limit the Company’s obligations with respect to any such claim if such claim is subsequently determined not to be asserted only on the ground that the Independent Counsel so selected does not meet the requirements an excluded claim under Section 7 of “Independent Counsel” as defined in Section 2 of this Agreement or otherwise to be payable under this Agreement, except to the extent that the Company is prejudiced thereby. If it is subsequently Determined in connection with such proceeding that the indemnifiable events are not excluded claims under Section 7 of this Agreement and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objectionthat Indemnitee, therefor, is entitled to be indemnified under this Agreement, the person so selected Company shall act as Independent Counsel. If such written objection is so made promptly indemnify Indemnitee.
(c) Indemnitee undertakes and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant agrees to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either reimburse the Company for all Expenses, amounts paid in settlement, judgments or fines paid by the Company in connection with any claim against Indemnitee may petition in the event and only to the extent that a court of competent jurisdiction for resolution of any objection which Determination shall have been made by a Court of competent jurisdiction in a decision from which there is no further right to appeal that Indemnitee is not entitled to be indemnified by the Company for such Expenses, amounts paid in settlement, judgments or Indemnitee to fines because the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 claim is an excluded claim under Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) 7 of this Agreement or because Indemnitee is otherwise not entitled to payment under 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification In no event shall a Determination be required in connection with advancement of Expenses pursuant to Section 10 or in connection with indemnification of Expenses incurred as a witness or incurred in connection with any Proceeding or portion thereof with respect to which Indemnitee has been successful on the first sentence of Section 10(a), merits or otherwise. If a determination, if Determination is required by applicable law, with respect to Indemnitee’s entitlement thereto any such Determination shall be made in the specific case:
within 30 days after receipt of Indemnitee’s written request for indemnification by (iA) if a Change in Control shall have has occurred, by Independent Counsel in a written opinion to the Board of DirectorsCompany and Indemnitee, a copy of which shall be delivered to Indemnitee; or
the Indemnitee or (iiB) if a Change in Control has not occurred, by one of the following four methods, which shall not have occurred,
be at the election of the Board: (A1) by a majority vote of the Disinterested Directorsdisinterested directors, even though less than a quorum of the Board,
quorum, (B2) by a committee of Disinterested Directors disinterested directors designated by a majority vote of the Disinterested Directorsdisinterested directors, even though less than a quorum of the Board,
quorum, (C3) 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
the Indemnitee, or (D4) if so directed by the Board, by the stockholders of the Company holding a majority of the outstanding voting stock of the Company; and. For purposes hereof, if it disinterested directors are those members of the Board who are not parties to the Proceeding in respect of which indemnification is so determined sought by Indemnitee. If a Determination is made pursuant to this Section 12(a) that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determinationDetermination. Indemnitee shall cooperate with the persondirectors, persons Independent Counsel or entity stockholders as applicable, making such determination Determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any reasonable documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determinationDetermination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee or on Indemnitee’s behalf in so cooperating with the persondirectors, persons the Independent Counsel, stockholders or entity making such determination the Company shall be borne by the Company (irrespective of the determination Determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In If the event the determination Determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected (A) prior to a Change in Control, by the Board of DirectorsBoard, and the Company Board 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 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 or (B) following a Change in Control, by Indemnitee, and Indemnitee shall give written notice to the Board advising it of the Independent Counsel so selected. In either event, Indemnitee or the CompanyBoard, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, other 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 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof and the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected to, either the Company or the Indemnitee may petition 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 selected by the Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Indemnification Agreement (Interline Brands, Inc./De)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by collectively, the Board, by the stockholders of the Company“Reviewing Party”); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity the Reviewing Party 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 costs or expenses Expenses (including reasonable attorneys’ fees and expenses disbursements, but excluding judgments, fines and disbursementsamounts paid in settlement) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination Reviewing Party 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 11(a) hereof10(a), the Independent Counsel shall be selected as provided in this Section 11(b10(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to Adient and the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to Adient and 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).a
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; 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 Indemnitee, or
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). If follows.
(i) if a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee him/her of the identity of the Independent Counsel so selected. If .
(ii) if a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee he/she shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 of this this/her 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this this/her 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by the BoardIndemnitee, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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, provided, that nothing contained in this Agreement shall require Indemnitee to waive any privilege Indemnitee may have. Any costs or expenses (including reasonable 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Indemnification Agreement (Paxson Communications Corp)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the CompanyLibbey; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 that is not privileged or otherwise protected from disclosure and which that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or 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 Libbey (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification) and the Company Libbey hereby indemnifies and agrees to hold Indemnitee harmless therefrom. Libbey 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company Libbey 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 of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company Libbey advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the CompanyLibbey, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company Libbey 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 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 has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company Libbey or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which that shall have been made by the Company Libbey or Indemnitee to the other’s 's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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) If Libbey 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
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) [if a Change in Control shall not have occurred,
occurred][in any other case]: (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors[if a Change in Control shall not have occurred or][; provided that], and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred [,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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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, requested by Independent Counsel in a written opinion to the Board of DirectorsCounsel, a copy of which shall be delivered to Indemnitee; or
or (ii) if no request is made by Indemnitee for a Change in Control shall not have occurred,
determination by Independent Counsel, (A) by the Board by a majority vote of the Disinterested Directors, even though less than a quorum of the Board,
(B) Board consisting of Disinterested Directors or by a committee of Disinterested Directors designated appointed by a majority vote the Board of the Disinterested Directors, even though less than or (B) if a quorum of the Board,
(C) if there are no such Board of Directors consisting of Disinterested Directors or a committee of Disinterested Directors is not obtainable or, even if obtainable, such quorum or committee of Disinterested Directors so directdirects, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
the Indemnitee, or (DC) if a quorum of Disinterested Directors or a committee of Disinterested Directors so directed by the Boarddirects, by a majority vote of the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurredoccurred within two years prior to the date of the commencement of the Proceeding for which indemnification is claimed, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurredoccurred within two years prior to the date of the commencement of the Proceeding for which indemnification is claimed, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding Proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Director Indemnity Agreement (Fairpoint Communications Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 that is not privileged or otherwise protected from disclosure and which that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof 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 a court of competent jurisdiction for resolution of any objection which that 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by the Board, by the stockholders of the CompanyIndemnitee; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the Court court or by such other person as the Court 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Indemnification Agreement (Carpenter Technology Corp)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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:
(icase by one of the following methods: [Include in Director Agreement][(x) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurred,
:] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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
Board[Include in Director Agreement][; 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 proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of 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) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 [Include in Officer Agreement][reasonable] out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors[Include in Director Agreement][if a Change in Control shall not have occurred or, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee]. Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, [Include 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. In either event, Indemnitee or Director Agreement][or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to [Include in Director Agreement][or 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination, if such determination is 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 of DirectorsDirectors of the Company if Indemnitee so requests in such written request for indemnification pursuant to Section 10(a) and a Change of Control has occurred, or (ii) by the Company in accordance with applicable law if Indemnitee does not so request such determination be made by Independent Counsel. In the case that such determination is made by Independent 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 Counsel’s 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, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the personIndependent Counsel or the Company, persons or entity as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such personcounsel 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 costs or expenses (including attorneys’ fees and expenses and disbursements) 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.
(b) In the event the determination that a Change of Control has occurred and Indemnitee exercises his or her right to have his or her entitlement to indemnification is to be made determined by Independent Counsel pursuant to Section 11(aSections 10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(band 11(a)(i). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Indemnitee. 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification and Independent Counsel pursuant to Section Sections 10(a) and 11(a)(i) hereof, respectively, and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either the Company or Indemnitee may petition 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 selected by the Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).. 2 Bracketed portions for CEO Director version only
Appears in 1 contract
Sources: Officer Indemnification Agreement (SpringWorks Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination9(a) hereof, if any determination by the Companies is required by applicable law, law with respect to Indemnitee’s entitlement thereto thereto, such determination shall be made in the specific case:
(i) if a Change in Control Indemnitee shall have occurredrequest such determination be made by Independent Counsel, by Independent Counsel in a written opinion to the Board of DirectorsCounsel, a copy of which shall be delivered to Indemnitee; or
and (ii) if a Change in Control shall not have occurred,
all other circumstances, (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
or (D) if so directed by the Board, by the stockholders shareholders of the CompanyPartnership; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made promptly, and in any event, within ten thirty (1030) days after the Submission Date (subject to any permitted extension with respect to such determinationdetermination pursuant to Section 11(b) hereof). Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company Companies (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company Companies hereby indemnifies indemnify and agrees agree to hold Indemnitee harmless therefrom. The Companies will not deny any written request for indemnification hereunder made in good faith by Indemnitee unless a determination as to Indemnitee’s entitlement to such indemnification described in this Section 10(a) has been made. The Companies agree to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Liabilities and Expenses arising out of or relating to this Agreement or its engagement pursuant hereto.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, by the Companies within ten (10) days of the Submission Date (the cost of such Independent Counsel shall to be selected paid by the Board of DirectorsCompanies), and the Company General Partner shall give written notice to Indemnitee advising Indemnitee it of the identity of the Independent Counsel so selected. If ; provided, however, that if a Change change in Control shall have occurredcontrol has occurred and results in individuals who were directors prior to the circumstances giving rise to the change in control ceasing for any reason to constitute a majority of the Board, the such Independent Counsel shall be selected by the Indemnitee within ten (unless Indemnitee shall request that 10) days of the Submission Date (the cost of such selection Independent Counsel to be made paid by the Board of DirectorsCompanies, in which event the preceding sentence shall apply), jointly and severally) and Indemnitee shall give written notice to the Company Companies advising it of the identity of the Independent Counsel so selected. In either eventcase, Indemnitee or the CompanyCompanies, as the case may beapplicable, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, other a written objection to such selection; provided, however, that such . 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 of this Agreement. If such written objection is made and substantiated, the Independent Counsel selected shall not serve as Independent Counsel unless and until Indemnitee or the Companies, as applicable, withdraw(s) the objection shall set forth with particularity the factual basis of or a court has determined that such assertionobjection is without merit. 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected toto before the later of (i) thirty (30) days after the later of the Submission Date and (ii) ten (10) days after the final disposition of the Proceeding, either each of the Company Companies and Indemnitee shall select a law firm or Indemnitee may petition member of a court of competent jurisdiction for resolution of any objection which shall have been made by law firm meeting the Company or Indemnitee qualifications to the other’s selection of Independent Counsel and/or for the appointment serve as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateCounsel, and such law firms or members of law firms shall select the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereofCounsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 (i1) of the following methods: (x) if a no Change in Control shall have has occurred, by Independent Counsel in a written opinion to the 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 if the number of such Disinterested Directors is less than a quorum of the Board,
Board (the “Majority Disinterested Directors”), (B) by a committee of Disinterested Directors designated by a majority vote of the Majority Disinterested Directors, even though less than a quorum of the Board,
Directors or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so directDirectors, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee or
Indemnitee; or (Dy) if a Change in Control shall have occurred, (A) if the Indemnitee so directed requests in writing, by the Majority Disinterested Directors or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, by the stockholders a copy of the Company; which shall be delivered to Indemnitee. The Company shall indemnify and hold harmless Indemnitee against and, if it is so determined that requested by Indemnitee, shall reimburse Indemnitee is entitled for, or advance to indemnificationIndemnitee, payment to Indemnitee shall be made within ten thirty (1030) days after of such determination. Indemnitee shall cooperate with the personrequest, 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 costs or expenses (including attorneys’ fees and expenses and disbursements) all Expenses incurred by Indemnitee in so cooperating with the person, person or 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 therefromdetermination.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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 selectedIndemnitee. In either event, Indemnitee or the Company, as the case may be, may, within 10 five (5) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 or by such other person Person as the Delaware Court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) If the Person empowered or selected under this Section 10 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made, and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60) day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Person making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto.
(d) Indemnitee shall cooperate with the Person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such Person 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.
Appears in 1 contract
Sources: Indemnification Agreement (Caliburn International Corp)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).written
Appears in 1 contract
Sources: Indemnification Agreement (Texas Capital Bancshares Inc/Tx)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a11(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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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).
(b) 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) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 of DirectorsBoard, in which event the preceding following sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedselected 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 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 10 ten (10) days after such written notice of selection shall have been given, 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 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification an Indemnification Notice pursuant to Section 10(a11(a) hereofhereof 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 a court of competent jurisdiction the Delaware 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 selected by the Court such court or by such other person as the Court such 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Indemnification Agreement (Leap Wireless International Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request a delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a)12, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto to indemnification 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 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,
, (Bii) by a committee of Disinterested Directors such directors designated by a majority vote of the Disinterested Directorssuch directors, even though less than a quorum of the Board,
, (Ciii) if there are no such Disinterested Directors ordirectors, or if such Disinterested Directors directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
Indemnitee, or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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 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). The Company will promptly 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) If it is so determined pursuant to Section 13(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (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 written 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 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a13(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b13(c). If a Change in Control shall not have occurred, the occurred or if Indemnitee otherwise elects to require determination with respect to Indemnitee’s entitlement to indemnification hereunder to be made by Independent Counsel shall be selected by the Board of Directors, 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 occurredCounsel, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding following sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selectedselected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2(g) 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 13(a)(iii), or if Indemnitee shall otherwise request, 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 and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2(g) of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a12(a) 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 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 or for the appointment as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateDelaware 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 11(a13(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a15(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).
Appears in 1 contract
Sources: Indemnity Agreement (Volcom Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) [if a Change in Control shall not have occurred:] [in any other case,
]] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten forty-five (1045) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors[if a Change in Control shall not have occurred or[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
Sources: Indemnification Agreement (Neos Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred [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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) [in any other case,] [if a Change in Control shall not have occurred,
:] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that] [if a Change in Control shall not have occurred or], and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred [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 selected], by Indemnitee (unless Indemnitee shall request that such selection be made by the 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 selectedIndemnitee. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person Person as the Court court shall designate, and the person . The Person with respect to whom all objections are so resolved or the person Person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a10(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 “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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding; provided that, in absence of any such determination with respect to such Proceeding, the Company shall pay all Liabilities and advance Expenses with respect to such Proceeding as if the Company had determined the Indemnitee to be entitled to indemnification and advancement of Expenses with respect to such Proceeding.
(d) The Company agrees to pay the reasonable fees of Independent Counsel and to fully indemnify 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.
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a A determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto to indemnification shall be made in the specific case:case by Independent Counsel (unless Indemnitee shall request that such determination be made by the Board of Directors, in which case by the person or persons or in the manner provided for in this Section
(ia) in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee. If the determination is to be made by the Board of Directors, it shall be done by a majority vote of a quorum consisting of Disinterested Directors, or, if a Change quorum is not obtainable, by a majority vote of a committee of the Board of Directors, designated to act in Control shall have occurredthe matter by a majority vote of all directors, consisting solely of two or more Disinterested Directors or if a committee of the Board of Directors consisting solely of two or more Disinterested Directors is not obtainable, by Independent Counsel in a written opinion to the 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
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (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 is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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 selectedselected 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 The Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, may deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 substantiatedmade, 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a the Delaware Court or other court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee as to the otherIndemnitee’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateIndemnitee, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a12(a) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 12 (a) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this section 12(b), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a14(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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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 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).
(b) If it is so determined pursuant to Section 15(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a15(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b15(c). If a Change in Control shall not have occurred, the occurred or if Indemnitee otherwise elects to require determination with respect to Indemnitee’s entitlement to indemnification hereunder to be made by Independent Counsel shall be selected by the Board of Directors, 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 occurredCounsel, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding 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 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 15(a)(iii), or if Indemnitee shall otherwise request, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a14(a) hereofhereof 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 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 selected by the 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 11(a15(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a17(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 orDirectors, 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
Indemnitee, or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 agrees to indemnify and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) calendar days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such . 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 (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 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 20 twenty (20) calendar days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a the Delaware Court or other court of competent jurisdiction (the “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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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 any and all reasonable fees and expenses incurred by such Independent Counsel in connection with acting pursuant to Section (11), to fully indemnify such Independent Counsel against any and all Expenses and Losses arising out of or relating to this Agreement or its engagement pursuant hereto, and to pay all reasonable fees and expenses incurred by the Company and the Indemnitee incident to the procedures of this Section 11, regardless of the manner in which such Independent Counsel was selected or appointed.
(d) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Indemnification Agreement (Delek US Holdings, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten forty-five (1045) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person Person as the Court court shall designate, and the person . The Person with respect to whom all objections are so resolved or the person Person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Officer Indemnification Agreement (Tango Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Officer Indemnification Agreement (Dianthus Therapeutics, Inc. /DE/)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
(ii) or if a Change in Control shall not have occurred,
(A) , if requested by Indemnitee, by Independent Counsel, a copy of which shall be delivered to Indemnitee, 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) or if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 a court of competent jurisdiction the Delaware 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 selected by the Court such court or by such other person as the Court such 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 3
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as 3 NTD: Bracketed portions for CEO Director version only the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
Sources: Officer Indemnification Agreement (Fusion Pharmaceuticals Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a14(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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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 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).
(b) If it is so determined pursuant to Section 15(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).such
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination, if required by applicable law, determination 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to Section 8(a), the first sentence Company shall, as soon as reasonably practicable after receipt of such request for indemnification, advise the Board that Indemnitee has requested indemnification. Any delay in providing the request will not relieve the Company from its obligations under this Deed, except to the extent such failure is prejudicial.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a8(a), a determination, if such determination is 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 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 Directorsdirectors who are not parties to such proceeding, even though less than a quorum of the Board,
quorum, (Bii) by a committee of Disinterested Directors such directors designated by a majority vote of the Disinterested Directorssuch directors, even though less than a quorum of the Board,
quorum, (Ciii) if there are no such Disinterested Directors ordirectors, or if such Disinterested Directors directors so direct, by Independent Counsel in a written opinion to the Board, or (iv) a vote of shareholders at a shareholder general meeting. 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten twenty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent Counsel or the Company, persons or entity as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such personcounsel 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 that is reasonably available to Indemnitee and reasonably necessary to such determination. Any To the Maximum Extent Permitted by Law, any costs or expenses (including reasonable attorneys’ fees and expenses 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof9(b), the Independent Counsel shall be selected as provided in this Section 11(b9(c). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may beCompany, 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 of this Agreement2, 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 has determined that such objection is without merit. If, within 20 days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a8(a) hereofhereof and (ii) the final disposition of the Proceeding, no the parties have not agreed upon an Independent Counsel shall have been selected and not objected toCounsel, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherCompany’s selection of Independent Counsel and/or and for the appointment as Independent Counsel of a person selected by the Court court or by such other person as the Court 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 11(a9(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement11(a), the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel.
(e) The Company will promptly notify Indemnitee with respect to any determination as to the entitlement of the Indemnitee to indemnification. If indemnification has been denied, the notice shall be in writing and include a description of any reason or basis for which indemnification has been denied.
Appears in 1 contract
Sources: Deed of Indemnification (Seagate Technology Holdings PLC)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination8(a) hereof, if any determination by the Company is required by applicable law, law with respect to Indemnitee’s entitlement thereto thereto, such determination shall be made in the specific case:
(i) if a Change in Control Indemnitee shall have occurredrequest such determination be made by Independent Counsel, by Independent Counsel in a written opinion to the Board of DirectorsCounsel, a copy of which shall be delivered to Indemnitee; or
and (ii) if a Change in Control shall not have occurred,
all other circumstances, (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
Indemnitee, or (D) if so directed by the Board, by the stockholders shareholders of the CompanyCompany holding a majority of the equity securities of the Company present at a meeting of the shareholders and entitled to vote; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall shall, to the fullest extent permitted by law and the LLC Agreement, 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 will not deny any written request for indemnification hereunder made in good faith by Indemnitee unless a determination as to Indemnitee’s entitlement to such indemnification described in this Section 9(a) has been made. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Liabilities and Expenses arising out of or relating to this Agreement or its engagement pursuant hereto.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a9(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, (i) the Independent Counsel shall be selected by the Board Company within ten (10) days of Directorsthe Submission Date (the cost of such Independent Counsel to be paid by the Company), and (ii) 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 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. In either event, selected and (iii) Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a ’s written objection to such selection; provided, however, that such . Such objection by Indemnitee 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. If such written objection is made and substantiated, the Independent Counsel selected shall not serve as Independent Counsel unless and until Indemnitee withdraws the objection shall set forth with particularity the factual basis of or a court has determined that such assertionobjection is without merit. 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected toto before the later of (A) thirty (30) days after the Submission Date and (B) ten (10) days after the final disposition of the Proceeding, either including any appeal therein, each of the Company and Indemnitee shall select a law firm or Indemnitee may petition member of a court of competent jurisdiction for resolution of any objection which shall have been made by law firm meeting the Company or Indemnitee qualifications to the other’s selection of Independent Counsel and/or for the appointment serve as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateCounsel, and such law firms or members of law firms shall select the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereofCounsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a11(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of Indemnitee’s written request by Indemnitee for indemnification pursuant to the first sentence Section 10(c) of Section 10(a)this Agreement, a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case:
(i) if a Change in Control shall have occurredcase by one of the following four methods, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
at the election of the Board in its sole discretion: (ii) if a Change in Control shall not have occurred,
(Ai) 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 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
or (Div) if so directed by the Board, by a majority vote of the stockholders of the Company; and. Notwithstanding the above, 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 written opinion to the Board, a copy of 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) 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personDisinterested 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of Directors, and the Company Board shall give provide written notice to Indemnitee advising the 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a10(c) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherCompany’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court such court or by such other person as the Court such 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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 pay all reasonable fees and expenses incident to the procedures of this Section 11(b), regardless of the manner in which such Independent Counsel was selected or appointed.
Appears in 1 contract
Sources: Indemnification Agreement (Ultragenyx Pharmaceutical Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 occurredcase by the Board, by Independent Counsel in a written opinion to the 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 directors 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 Company who are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion not parties to the BoardProceeding, a copy of which shall be delivered to Indemnitee or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten twenty (1020) days after such determination. In the event that (i) there are no disinterested directors serving on the Board, (ii) no determination of entitlement to indemnification shall have been made pursuant to the preceding sentence within sixty (60) days after receipt by the Company of the request for indemnification, (iii) a determination is made pursuant to the preceding sentence that Indemnitee is not entitled to indemnification under this Agreement, or (iv) there has been a Company Change in Control prior to the determination by the Board, ▇▇▇▇▇▇▇▇▇▇ shall be entitled to have his/her entitlement to indemnification determined by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee and, if it is so determined by Independent Counsel that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) days after such determination.
(b) Indemnitee shall cooperate with the personBoard or Independent Counsel, persons or entity as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to the Board or such personIndependent Counsel, persons or entity as applicable, 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 Reasonable costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personBoard or Independent Counsel, persons or entity making such determination as applicable, 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.
(bc) In the event the determination of that Indemnitee exercises his/her right to have his/her entitlement to indemnification is to be made determined by Independent Counsel pursuant to as contemplated by Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Indemnitee. 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final disposition of the Proceeding (including any appeal therein), no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction 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 selected by the Court court or by such other person as the Court 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
(d) In the event that Independent Counsel is selected to make the determination of Indemnitee’s entitlement to indemnification as contemplated by clause (ii) or (iii) of the second sentence of Section 11(a), neither the failure of the Board to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Board that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct; and the Independent Counsel making such determination shall be bound by the presumptions set forth in Section 12.
(e) The rights set forth in this Section 11 with respect to Indemnitee selecting Independent Counsel to determine Indemnitee’s entitlement to indemnification shall be in addition to, and not in lieu of, Indemnitee’s rights set forth in Section 13.
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)9(a) above, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case:
: (i) if a Change in Control shall have occurred, by Independent Counsel Counsel, in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved by the Board in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval will not be unreasonably withheld; or
or (ii) if a Change in Control shall not have occurred,
, (A) by the Board by a majority vote of the Disinterested Directors, even though less than a quorum consisting 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 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 so directDirectors, (B) if Independent Counsel has been selected by the Board in accordance with Section 2-418(e)(2)(ii) of the MGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld, conditioned or delayed, by Independent Counsel Counsel, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
or (DC) if so directed by a majority of the members of the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 determinationdetermination in the discretion of the Board or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(a). Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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 shall indemnify and agrees to hold Indemnitee harmless therefrom.
(b) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is appointed.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, (i) the Independent Counsel shall be selected by the Board Company within ten (10) days of Directorsthe Submission Date (the cost of each such counsel to be paid by the Company), and the Company (ii) 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 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. In either event, selected and (iii) Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a ’s 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 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 a written objection is so made and substantiatedby Indemnitee, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without meritwithdrawn. If, within 20 If no Independent Counsel shall have been selected and not objected to before the later of (i) thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a) hereofhereof (the “Submission Date”) and (ii) ten (10) days after the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either each of the Company and Indemnitee shall select a law firm or Indemnitee may petition member of a court of competent jurisdiction for resolution of any objection which shall have been made by law firm meeting the Company or Indemnitee qualifications to the other’s selection of Independent Counsel and/or for the appointment serve as Independent Counsel of a person selected by the Court or by such other person as the Court shall designateCounsel, and such law firms or members of law firms shall select the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereofCounsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 or
or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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)."Independent
Appears in 1 contract
Sources: Indemnity Agreement (Scient Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification or an advance pursuant to the first sentence of Section 10(a8(a), a determination, if required by applicable law, including the Act, 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by collectively, the Board, by the stockholders of the Company“Reviewing Party”); and, if it is so determined that Indemnitee is entitled to indemnificationindemnification or an advance, payment by way of indemnification or an advance, as applicable, to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity the Reviewing Party 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Adient promptly will advise Indemnitee in so cooperating writing with the person, persons respect to any determination that Indemnitee is or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement is not entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom, 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 11(a) hereof9(a), the Independent Counsel shall be selected as provided in this Section 11(b9(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company Adient 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 of DirectorsBoard, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company Adient advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the CompanyAdient, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to the Company Adient 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 of this Agreement1, 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 the Irish Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a8(a) hereofand the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company Adient or Indemnitee may petition a court of competent jurisdiction the Irish Court for resolution of any objection which shall have been made by the Company Adient or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court such court or by such other person as the Court such 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 11(a) hereof9(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement11(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).
Appears in 1 contract
Sources: Deed of Indemnity (Adient PLC)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of Indemnitee’s written request by Indemnitee for indemnification pursuant to the first sentence Section 10(c) of Section 10(a)this Agreement, a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case:
(i) if a Change in Control shall have occurredcase by one of the following four methods, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
at the election of the Board in its sole discretion: (ii) if a Change in Control shall not have occurred,
(Ai) 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 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
or (Div) if so directed by the Board, by a majority vote of the stockholders of the Company; and. Notwithstanding the above, 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 written opinion to the Board, a copy of 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) 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personDisinterested 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of Directors, and the Company Board shall give provide written notice to Indemnitee advising the 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a10(c) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherCompany’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court such court or by such other person as the Court such 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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 pay all reasonable fees and expenses, including all reasonable fees and expenses of Independent Counsel, incident to the procedures of this Section 11(b), regardless of the manner in which such Independent Counsel was selected or appointed.
Appears in 1 contract
Sources: Indemnification Agreement (Ultragenyx Pharmaceutical Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
Sources: Director Indemnification Agreement (Aerovate Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 occurredoccurred after the date of this Agreement, by Independent Counsel in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses Expenses (including attorneys’ fees and expenses 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurredoccurred after the date of this Agreement, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 occurredoccurred 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof 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 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of Indemnitee’s written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a10(c), a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case:
(i) if a Change in Control shall have occurredcase by one of the following four methods, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
at the election of the Board: (ii) if a Change in Control shall not have occurred,
(Ai) 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 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
or (Div) if so directed by the Board, by the stockholders of the Company; and. Notwithstanding the above, 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 written opinion to the Board, a copy of 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) 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personDisinterested 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of Directors, and the Company Board shall give provide written notice to Indemnitee advising the 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a10(c) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherCompany’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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 pay all reasonable fees and expenses incident to the procedures of this Section 11(b), regardless of the manner in which such Independent Counsel was selected or appointed.
Appears in 1 contract
Sources: Indemnification Agreement (Supernus Pharmaceuticals Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request delivery of the Indemnification Notice by Indemnitee for indemnification pursuant to the first sentence of under Section 10(a11(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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; andprovided, if 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 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).
(b) If it is so determined pursuant to Section 15(a) hereof that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a15(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b15(c). If a Change in Control shall not have occurred, the occurred or if Indemnitee otherwise elects to require determination with respect to Indemnitee’s entitlement to indemnification hereunder to be made by Independent Counsel shall be selected by the Board of Directors, 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 occurredCounsel, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding 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 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 15(a)(iii), or if Indemnitee shall otherwise request, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 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 selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 or
or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Advanced Micro Devices Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by collectively, the Board, by the stockholders of the Company“Reviewing Party”); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity the Reviewing Party 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 costs or expenses Expenses (including reasonable attorneys’ fees and expenses disbursements, but excluding judgments, fines and disbursementsamounts paid in settlement) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination Reviewing Party 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 11(a) hereof10(a), the Independent Counsel shall be selected as provided in this Section 11(b10(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to Adient and the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to Adient and 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 of this Agreement1, 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a) hereofand the final disposition of the Proceeding, 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 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 Court such court or by such other person as the Court such 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 11(a) hereof10(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 7 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Directors, and a copy of which such written opinion shall be delivered to Indemnitee; or
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 or
or (Div) if so directed by the Board, by the stockholders shareholders of the Company; and. If, if in accordance with the foregoing provisions of this Section 11(a), it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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. 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 to commence any judicial proceeding or arbitration pursuant to Section 13. Further, any determination made pursuant to this Section 11 shall not bind Indemnitee or prejudice Indemnitee’s rights to indemnification as finally determined by a judicial proceeding or arbitration.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 2
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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). 2 Bracketed portions for CEO Director version only
(c) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Indemnification Agreement (Transcode Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; 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 Indemnitee, or
(D) if so directed by the Board, by the stockholders of the Company; and, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). follows.
(i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 (unless Indemnitee he/she shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Maidenform Brands, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(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 of DirectorsBoard, a copy of which shall be ▇▇▇▇▇▇, Inc. Indemnification Agreement delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 a court of competent jurisdiction the Delaware ▇▇▇▇▇▇, Inc. Indemnification Agreement 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 selected by the Court such court or by such other person as the Court such 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).shall
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 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
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 an arbitration panel pursuant to Section 14 hereto has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction seek an arbitral determination pursuant to Section 14 hereto 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 Court arbitration panel or by such other person as the Court arbitration panel 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) 14 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) To obtain indemnification, 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 the Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors that Indemnitee has requested indemnification. Any delay in providing the request will not relieve the Company from its obligations under this Agreement, except to the extent such failure is prejudicial.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case:
, if required by applicable law, (iA) by a majority vote of a quorum of the members of the Company’s Board of Directors not at the time party to the Proceeding, (B) if a Change in Control shall have occurredquorum pursuant to clause (A) of this subsection cannot be obtained, by Independent Counsel a majority vote of a committee duly designated by the Company’s Board of Directors consisting solely of two or more directors not at the time parties to the Proceeding; provided, however, that directors who are not parties to the Proceeding may participate in the designation of the committee, (C) by special legal counsel (selected by the Company’s Board of Directors or its committee in the manner described in clauses (A) or (B) of this subsection or, if a quorum of the Company’s Board of Directors cannot be obtained under clause (A) of this subsection and a committee cannot be designated under clause (B) of this subsection, the special legal counsel shall be selected by majority vote of the full Board of Directors) in a written opinion to the Company’s 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
or (D) if so directed by the BoardCompany’s Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such the 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 costs or expenses (including attorneys’ fees and expenses 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCompany, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission extent permitted by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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)law.
Appears in 1 contract
Sources: Indemnification & Liability (Fei Co)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred [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 of DirectorsBoard; or (y) in any other case, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred [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 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 selectedIndemnitee. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a8(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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
Indemnitee; or (DC) if so directed by the Board, by the stockholders of the CompanyCompany by a majority vote of those in attendance at a meeting at which a quorum is present; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. .
(b) Indemnitee shall 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 costs or 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.
(bc) In Notwithstanding Section 2 of this Agreement, within ten (10) days after the event the determination Indemnitee’s provides written notice of entitlement to indemnification is to be made by his selection of Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a Indemnitee any written objection to such selectionthe selection of Independent Counsel; 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 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 has determined that such objection is without merit. If, within 20 days after the later of a submission by Indemnitee of a written request for indemnification pursuant to Section 10(a8(a) hereofhereof 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 a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherIndemnitee’s selection section of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 11(a9(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a11(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).
Appears in 1 contract
Sources: Indemnification Agreement (Hercules Technology Growth Capital Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (ii) if a Change in Control shall not have occurred,
any other case, ](A) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a) hereofand (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 occurredhas occurred and Indemnitee so requests, by Independent Counsel in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall any circumstance not have occurredcovered by the preceding clause (i),
(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, if . If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) 10 days after such determination. Indemnitee shall 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 is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofCounsel, the Independent Counsel shall be selected as provided in this Section 11(b). follows.
(i) If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee him or her 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 (unless Indemnitee he shall request that such selection be made by the Board of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within the later of (A) 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof and (B) the final disposition of the Proceeding, including any appeal therefrom, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
Sources: Indemnification Agreement (Comtech Telecommunications Corp /De/)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request application by Indemnitee for indemnification pursuant to the first sentence Section 10(b) or written statement by Indemnitee for advances of Expenses pursuant to Section 10(a9(b), a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto pursuant to the mandatory terms of this Agreement, pursuant to statute, or pursuant to other sources of right to indemnity, and pursuant to Section 12 of this Agreement shall be made in the specific case:
: (i) if a Change in Control shall have occurredfirst, by Independent Counsel in a written opinion to the 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 whether or not such directors otherwise would constitute a quorum of the Board,
; (Bii) if not, then by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directorssuch directors, even though less than whether or not such directors would otherwise constitute a quorum of the Board,
, (Ciii) third, if there are no such Disinterested Directors or, or if such so requested by (x) the Indemnitee in his or her sole discretion or (y) the Disinterested Directors so directDirectors, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
Indemnitee, or (Div) if so directed by the Boardlast, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such the 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 costs or 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 jointly and agrees severally indemnify and agree to hold Indemnitee harmless therefromfrom any such costs and expenses.
(b) If it is determined that Indemnitee is entitled to indemnification requested by the Indemnitee in a written application submitted to the Company pursuant to Section 10(b), payment to Indemnitee shall be made within ten (10) days after such determination. All advances of Expenses requested in a written statement by Indemnitee pursuant to Section 9(b) prior to a final determination of eligibility for indemnification shall be paid in accordance with Section 9.
(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b11(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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. .
(d) If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(b) or 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 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 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 11(a) hereof. .
(e) The Company shall pay the reasonable fees and expenses of the Independent Counsel and to fully indemnify 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.
(f) Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement, any Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
Appears in 1 contract
Sources: Director’s Indemnification Agreement (USA Mobility, Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. 1
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurredany other case,
] (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 1 Bracketed portions for CEO Director version only not serve as Independent Counsel unless and until such objection is withdrawn or a court the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person Person as the Court court shall designate, and the person . The Person with respect to whom all objections are so resolved or the person Person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Director Indemnification Agreement (Talaris Therapeutics, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for Any indemnification pursuant to the first sentence under paragraphs (a), (b), (c) and (d) of Section 10(a), 2 (unless ordered by a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto court) shall be made by the Company within 65 days of the submission by the Indemnitee of the Indemnification Statement (as defined under Section 7(a) hereof) and only as authorized in the specific case:
case upon a determination (in accordance with Section 7 hereof) that indemnification of Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (a), (b), (c) and (d) of Section 2. Such determination shall be made (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the 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 if the number of Disinterested Directors is less than a quorum of the Board,
quorum, 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,
(Cii) if there are no such Disinterested Directors or, or if such a majority of Disinterested Directors so directdirects, by Independent Counsel in a written opinion by independent legal counsel retained and paid by the Company, or (iii) by the stockholders. The independent legal counsel may be outside counsel currently or previously employed by the Company, provided that such counsel (A) has not provided legal services to the BoardIndemnitee personally, a copy (B) does not regularly advise the Board of Directors or senior management of the Company with respect to their actions, duties and responsibilities, and (C) and has not provided legal services to the Company or the Indemnitee with respect to the transaction or matter out of which shall be delivered to Indemnitee orthe Proceeding arose.
(Db) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses (including reasonable 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event . The person, persons or entity making the determination of with respect to Indemnitee's entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising notify 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 such determination no later than five (unless Indemnitee shall request that such selection be made by the 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 5) business days after such written notice of selection shall have been given, 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 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 determination 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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)made.
Appears in 1 contract
Sources: Indemnification Agreement (Atlantic Coast Airlines Holdings Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by collectively, the Board, by the stockholders of the Company“Reviewing Party”); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity the Reviewing Party 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 costs or expenses Expenses (including reasonable attorneys’ fees and expenses disbursements, but excluding judgments, fines and disbursementsamounts paid in settlement) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination Reviewing Party 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 11(a) hereof10(a), the Independent Counsel shall be selected as provided in this Section 11(b10(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to Adient and the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, deliver to Adient and 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 of this Agreement1, 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 the Michigan Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a) hereofand the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction the Michigan 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 selected by the Court such court or by such other person as the Court such 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 11(a) hereof10(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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, case by Independent Counsel chosen in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
(iiaccordance Section 11(b) 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 below in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
(D) if so directed by the BoardIndemnitee, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within as soon as practicable, but in no event later than ten (10) days days, after such determination. Indemnitee shall cooperate with the person, persons or entity Independent Counsel making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity counsel 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 costs or expenses (including attorneys’ fees and expenses and disbursements) 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of Directors, and the Indemnitee. 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the Court court or by such other person as the Court 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a), 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 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, 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, 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 costs or expenses Expenses (including attorneys’ ' and experts' fees and expenses 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. For the sake of clarity, no determination of entitlement shall be required to the extent that Indemnitee is successful, on the merits or otherwise (including by dismissal with or without prejudice), in any Proceeding or in defense of any claim, issue or 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 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding 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 10 five (5) business days after such written notice of selection shall have been givenreceived, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) 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 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 selected by the Delaware Court or by such other person as the Delaware 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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.
Appears in 1 contract
Sources: Indemnification Agreement (Readers Digest Association Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification or an advance pursuant to the first sentence of Section 10(a8(a), a determination, if required by applicable law, including the Act, 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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 or
(D) if so directed by collectively, the Board, by the stockholders of the Company“Reviewing Party”); and, if it is so determined that Indemnitee is entitled to indemnificationindemnification or an advance, payment by way of indemnification or an advance, as applicable, to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity the Reviewing Party 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Adient promptly will advise Indemnitee in so cooperating writing with the person, persons respect to any determination that Indemnitee is or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement is not entitled to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom, 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 11(a) hereof9(a), the Independent Counsel shall be selected as provided in this Section 11(b9(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company Adient 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).preceding
Appears in 1 contract
Sources: Deed of Indemnity (Adient LTD)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence Section 11(a) of Section 10(a)this Agreement, 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 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,
, (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 or
or (Div) if so directed by the Board, by the stockholders of the Company; and, if .
(b) 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) days after such determination. Indemnitee shall 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 costs or expenses (including attorneys’ fees and expenses and disbursements) Expenses 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.
(bc) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a)(iii) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 of DirectorsBoard, in which event the preceding 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 a court of competent jurisdiction the Delaware 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 selected by the Court such court or by such other person as the Court such 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a8(a), a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in by the specific case:
Reviewing Party, who shall be: (i) if a Change in Control (other than a Change in Control which has been approved by a majority of the Board who were directors immediately prior to such Change in Control) shall have occurred, by Independent Counsel in a written opinion Counsel, retained pursuant to the Board of Directors, a copy of which shall be delivered to IndemniteeSection 9(c); or
or (ii) if a Change in Control shall not have occurred,
, (A) selected 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, Independent Counsel, retained by Independent Counsel the Company and EHSI (who shall make such determination in the form of 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, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determinationIndemnitee). Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnificationReviewing Party, 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 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 Reviewing Party shall be borne by the Company EHSI (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom).
(b) In the event the determination of entitlement to indemnification is to be made by that Independent Counsel is retained by the Company and EHSI pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 of Directors, in which event the preceding sentence shall apply9(a), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of the selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a11(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) EHSI agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Board who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Advances under this Agreement or any other agreement or the Charter Documents now or hereafter in effect relating to any Proceeding, EHSI shall seek legal advice only from Independent Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such Independent Counsel, among other things, shall render its written opinion to the Company, EHSI and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under the laws of the State of Delaware. EHSI agrees to pay the reasonable fees of the Independent Counsel and to indemnify fully such Independent Counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders a majority vote of a quorum of shareholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (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 is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. 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 therefromfrom any such costs or Expenses. 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 with specificity 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 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhereof 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 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 selected by the Court such court or by such other person as the Court such 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 11(a) hereofof this Agreement. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of DirectorsBoard; or (y) in any other case, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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 out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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 selectedIndemnitee. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person as the Court court shall designate, and the . The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 occurredcase by the Board, by Independent Counsel in a written opinion to the 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 directors 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 Company who are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion not parties to the BoardProceeding, a copy of which shall be delivered to Indemnitee or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten twenty (1020) days after such determination. In the event that (I) there are no disinterested directors serving on the Board, (I) no determination of entitlement to indemnification shall have been made pursuant to the preceding sentence within sixty (60) days after receipt by the Company of the request for indemnification, (I) a determination is made pursuant to the preceding sentence that Indemnitee is not entitled to indemnification under this Agreement, or (I) there has been a Company Change in Control prior to the determination by the Board, Indemnitee shall be entitled to have his/her entitlement to indemnification determined by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee and, if it is so determined by Independent Counsel that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) days after such determination.
(b) Indemnitee shall cooperate with the personBoard or Independent Counsel, persons or entity as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to the Board or such personIndependent Counsel, persons or entity as applicable, 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 Reasonable costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personBoard or Independent Counsel, persons or entity making such determination as applicable, 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.
(bc) In the event the determination of that Indemnitee exercises his/her right to have his/her entitlement to indemnification is to be made determined by Independent Counsel pursuant to as contemplated by Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Indemnitee. 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final disposition of the Proceeding (including any appeal therein), no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction 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 selected by the Court court or by such other person as the Court 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
(d) In the event that Independent Counsel is selected to make the determination of Indemnitee’s entitlement to indemnification as contemplated by clause (ii) or (iii) of the second sentence of Section 11(a), neither the failure of the Board to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Board that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct; and the Independent Counsel making such determination shall be bound by the presumptions set forth in Section 12.
(e) The rights set forth in this Section 11 with respect to Indemnitee selecting Independent Counsel to determine Indemnitee’s entitlement to indemnification shall be in addition to, and not in lieu of, Indemnitee’s rights set forth in Section 13.
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a10 (a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto thiseto 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
Indemnitee or (ii) if a Change in Control shall not have occurred,
, (A) by a majority vote of the Disinterested DirectorsOfficers, even though less than a quorum of the Board,
, (B) by a committee of Disinterested Directors Officers designated by a majority vote of the Disinterested DirectorsOfficers, even though less than a quorum of the Board,
, (C) if there thise are no such Disinterested Directors Officers or, if such Disinterested Directors Officers so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 of othiswise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or 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 therefromthisefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereofhiseof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either eithis event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofhiseof, no Independent Counsel shall have been selected and not objected to, either eithis the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherof this’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court or by such other of this 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 11(a) hereofhiseof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further furthis responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
Appears in 1 contract
Sources: Officer Retainer Agreement (Kronos Advanced Technologies Inc)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(a), a determination, if required by applicable law, 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or expenses Expenses (including reasonable attorneys’ fees and expenses 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 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 of this Agreement2, 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 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofand the final disposition of the Proceeding, 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 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 Court such court or by such other person as the Court such 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 11(a) hereof12(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement14(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) 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 (Fathom Digital Manufacturing)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon Following written request by Indemnitee for indemnification pursuant to the first sentence of Section 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 of Control shall have occurred, by Independent Counsel (who may, to the extent permitted by law, be regular legal counsel to the Company) in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
or (ii) if a Change in of Control shall not have occurred,
, (A) by the Board by a majority vote of the a quorum consisting of Disinterested Directors, even though less than a quorum of the Board,
(B) if such a quorum cannot be obtained then by a majority vote of a committee of the Board consisting solely of Disinterested Directors designated by a majority vote of the Disinterested DirectorsBoard in which directors who are parties to the Proceeding in respect of which indemnification is sought may participate, even though less than (C) if a quorum of the Board,
(C) if there are no such Board consisting of Disinterested Directors is not obtainable, and if a majority vote of a committee of the Board consisting solely of Disinterested Directors is not obtainable, or, even if obtainable such quorum of Disinterested Directors Directors, or such committee, by a majority vote so directdirects, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or
or (D) if so directed by a majority of the members of the Board, by the stockholders shareholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in of Control shall not have occurred, the Independent Counsel shall be selected by the Board or a committee of the Board consisting solely of Disinterested Directors, by the vote required by applicable law for the selection of Independent Counsel, and the Company shall give written notice to Indemnitee advising Indemnitee his or her of the identity of the Independent Counsel so selected. If a Change in of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of DirectorsBoard, in which event the preceding sentence shall apply), subject to approval by the Board, or a committee thereof consisting solely of Disinterested Directors, by the vote required by applicable law for the selection of Independent Counsel, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. Any such approval by the Board or a committee thereof consisting solely of Disinterested Directors, will not be unreasonably withheld and by such approval the Board or committee shall be deemed to have joined in such selection. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 of this Agreement, and the objection shall set forth with particularity the factual basis of for such assertion. Absent a proper and timely objection, the person so selected (and, if a Change of Control shall have occurred, approved by the Board or a committee thereof consisting solely of Disinterested Directors) 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 has determined that such objection is without merit. If, within 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected (and, if a Change of Control shall have occurred, approved by the Board or a committee thereof consisting solely of Disinterested Directors) and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any failure by the Board or a committee thereof to approve Indemnitee’s selection of Independent Counsel after a Change of Control shall have occurred, or 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 Court court or by such other person as the Court court shall designate, and the person with respect to whom all failures to approve and objections are so resolved or the person so appointed shall act as Independent Counsel under Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon receipt of Indemnitee’s written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(c), a determination, if required by applicable law, determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case:
(i) if a Change in Control shall have occurredcase by one of the following three methods, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to at the election of the Board, within forty-five (45) days of the Company’s receipt of Indemnitee; or
’s written request for indemnification hereunder: (ii) if a Change in Control shall not have occurred,
(Ai) 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
Indemnitee, or (Div) if so directed by the Board, by the stockholders of the Company; and. Notwithstanding the above, 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 written opinion to the Board, a copy of 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) days after such determinationof 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personDisinterested 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 agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a10(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(b). If a Change in Control shall not have occurred, the The Independent Counsel shall be selected by the Board of Directors, and the Company Board shall give provide written notice to Indemnitee advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be Such counsel selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board shall certify to Indemnitee in writing that it meets the definition of Directors, in which event the preceding sentence shall apply), and “Independent Counsel” provided herein. Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givenreceived, 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 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 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 20 twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(c) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the otherCompany’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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 pay all reasonable fees and expenses incident to the procedures of this Section 10(b), regardless of the manner in which such Independent Counsel was selected or appointed.
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 the first sentence of Section 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 occurredcase by the Board, by Independent Counsel in a written opinion to the 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 directors 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 Company who are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion not parties to the BoardProceeding, a copy of which shall be delivered to Indemnitee or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. In the event that (i) there are no disinterested directors serving on the Board, (ii) no determination of entitlement to indemnification shall have been made pursuant to the preceding sentence within sixty (60) days after receipt by the Company of the request for indemnification, (iii) a determination is made pursuant to the preceding sentence that Indemnitee is not entitled to indemnification under this Agreement, or (iv) there has been a Company Change in Control prior to the determination by the Board, Indemnitee shall be entitled to have his [or her] entitlement to indemnification to be determined by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee and, if it is so determined by Independent Counsel that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination.
(b) Indemnitee shall cooperate with the personBoard or Independent Counsel, persons or entity as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to the Board or such personcounsel, persons or entity as applicable, 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 costs or expenses (including attorneys’ fees and expenses and disbursements) incurred by Indemnitee in so cooperating with the personBoard or Independent Counsel, persons or entity making such determination as applicable, 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.
(bc) In the event the determination of that Indemnitee exercises his [or her] right to have his [or her] entitlement to indemnification is to be made determined by Independent Counsel pursuant to as contemplated by Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, and the Indemnitee. 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, deliver to the Company or to Indemnitee, as the case may be, Indemnitee 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the Court court or by such other person as the Court 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
(d) In the event that Independent Counsel is selected to make the determination of Indemnitee’s entitlement to indemnification as contemplated by clause (ii) or (iii) of the second sentence of Section 11(a), neither the failure of the Board to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Board that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct, and the Independent Counsel making such determination shall be bound by the presumptions set forth in Section 12.
(e) The rights set forth in this Section 11 with respect to Indemnitee selecting Independent Counsel to determine Indemnitee’s entitlement to indemnification shall be in addition to, and not in lieu of, Indemnitee’s rights set forth in Section 13.
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a9(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 occurredoccurred 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 of Directors, a copy of which shall be delivered to IndemniteeBoard; or
or (iiy) if a Change in Control shall not have occurred,
any other case,]4 (Ai) by a majority vote of the Disinterested Directorsdisinterested 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 Directorsdisinterested 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 or
(D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten thirty (1030) days after such determination. Indemnitee shall cooperate with the personIndependent 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 personcounsel 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. The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to 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 (including reasonable attorneys’ fees and expenses 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.
(b) In the event If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b10(a). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard[; provided that, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If if a Change in Control shall have occurredoccurred 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 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. In either event, Indemnitee [or the Company, as the case may be, ,] may, within 10 ten (10) days after such written notice of selection shall have been givensuch selection, 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 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 the Delaware Court has determined that such objection is without merit. If, within 20 twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a9(a), and (ii) hereofthe final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected and not objected towithout objection, either Indemnitee or the Company or Indemnitee may petition a court of competent jurisdiction the Delaware Court 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 Court court or by such other person Person as the Court court shall designate, and the person . The Person with respect to whom all objections are so resolved or the person Person so appointed shall act as Independent Counsel under Section 11(a10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a12(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). 4 Bracketed provision for CEO Director only
(c) Notwithstanding anything to the contrary contained in this Agreement, the determination of entitlement to indemnification under this Agreement shall be made without regard to the Indemnitee’s entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses or covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).
Appears in 1 contract
Sources: Officer Indemnification Agreement (Disc Medicine, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(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 of Directors, a copy of which shall be delivered to Indemnitee; or
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 or
or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 costs or 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 's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of Directors, 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 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).written
Appears in 1 contract
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made determination that indemnification is proper in the specific case:
case shall be made: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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,
(CB) 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
or (DC) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a12(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a11(a) hereofhereof 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 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 4826-6168-6974v5 Counsel and/or for the appointment as Independent Counsel of a person selected by the 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 11(a12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a14(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).
Appears in 1 contract
Sources: Indemnification Agreement (Caesars Entertainment, Inc.)
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. (a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 10(a)) 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 of DirectorsBoard, a copy of which shall be delivered to Indemnitee; or
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
or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall 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 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.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board of DirectorsBoard, and the Company shall give written notice to Indemnitee advising Indemnitee 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 of DirectorsBoard, 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. In either event, Indemnitee or the Company, as the case may be, may, within 10 ten (10) days after such written notice of selection shall have been given, 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 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 has determined that such objection is without merit. If, within 20 twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereofof 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 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 selected by the 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 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 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).
Appears in 1 contract