The Company Actions. To the greatest extent not inconsistent with the laws and public policies of State of California, the Company will indemnify any Member, officer or director who was or is a party or is threatened to be made a party to any threatened, pending or completed proceeding by or in the right of the Company because such individual is or was a Member, officer or director, as a matter of right, against all liability incurred by such individual in connection with proceeding; provided that it is determined that the specific indemnification of such individual is permissible in the circumstances because the individual has met the standard of conduct for indemnification set forth in subsection (d) of this Section, except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable for gross negligence or misconduct in the performance of his duty to the Company unless and only to the extent that the court in which the action or suit was brought shall determine on application that, despite the adjudication of liability, but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. The Company will pay for or reimburse the reasonable expenses incurred by a Member, officer or director in connection with any such proceeding in advance of final disposition thereof if, (i) the individual furnishes the Company a written affirmation of the standard of conduct for indemnification described in subsection (d) of this Section, (ii) the individual furnishes the Company a written undertaking, executed personally or on such individual’s behalf, to repay the advance if it is ultimately determined that such individual did not meet such standards of conduct, and (iii) a determination is made in accordance with subsection (e) that, based upon facts then known to those making the determination, indemnification would not be precluded under this Section. The undertaking described in subsection (b)(ii) above must be a general obligation of the Member, officer or director, subject to such reasonable limitations as the Company may permit, but need not be secured and may be accepted without reference to financial ability to make repayment. The Company will indemnify a Member, officer or director who is successful, on the merits or otherwise, in the defense of any such proceeding or in defense of any claim, issue, or matter therei...
The Company Actions. (a) The Company hereby approves of and consents to the Offer and represents that the Company's Board of Directors, at a meeting duly called and held prior to the execution hereof (i) has unanimously determined that each of this Agreement, the Offer and the Merger (as hereinafter defined) are fair to and in the best interests of the stockholders of the Company, (ii) has duly and unanimously approved this Agreement, the Stockholder Agreement, and the transactions contemplated hereby and thereby, including the Offer and the Merger (collectively, the "Transactions"), and such approval constitutes approval of the Offer, this Agreement, the Stockholder Agreement, and the transactions contemplated hereby and thereby, including the Merger, for purposes of Section 17-12,101 of the KGCC, such that Section 17-12,101 of the KGCC will not apply to the transactions contemplated hereby or thereby, (iii) has unanimously resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the Merger, and (iv) has unanimously resolved to amend the By-laws of the Company (the "By-Laws") to ensure that the provisions of Sections 17-1286 through 17-1298 of the KGCC do not apply to the Company, the rights of its stockholders and the Transactions contemplated by this Agreement.
The Company Actions
