By the Stockholders. These Amended and Restated Bylaws may be altered, amended or repealed, in whole or in part, or new bylaws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any annual meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new bylaws shall have been stated in the notice of such special meeting.
By the Stockholders. (c) In the event the determination of entitlement is to be made by Independent Counsel, such Independent Counsel shall be selected by the Board and approved by Indemnitee. Upon failure of the Board to so select such Independent Counsel or upon failure of Indemnitee to so approve, such Independent Counsel shall be selected by the American Arbitration Association of
By the Stockholders. Subject to the limitations set forth in this Article IX, from and after the Closing, by virtue of the Merger, the Stockholders shall jointly and severally, to the extent of their interest in the Holdback and not personally, indemnify and hold harmless Buyer, the Merger Subsidiary, the Company and the Surviving Corporation and its directors, officers and agents (each of the foregoing being referred to individually as an “Indemnified Buyer Party” and collectively as “Indemnified Buyer Parties”) from and against any and all Losses, Liabilities, damages, costs and expenses, including reasonable costs of investigation and defense, reasonable legal fees and expenses and other professionals’ and experts’ reasonable fees and reasonable expenses (collectively, “Damages”) arising from assessments, claims, demands, assertions of liability or actual or threatened actions, suits or proceedings (whether civil, criminal, administrative or investigative) directly or indirectly incurred, paid or accrued in connection with, resulting from or arising out of (i) any breach of any representation or warranty made by the Company and/or any of the Stockholders in this Agreement (and the Schedules and Exhibits to this Agreement), (ii) any breach of or default in connection with any of the covenants or agreements made by the Company and/or any Stockholders in this Agreement, (iii) any of the matters set forth on Schedule 3.5 of the Company Disclosure Letter, (iv) any Liability of the Business not set forth on the Company Balance Sheet, (v) any suit, action, claim or Loss by any holder of any Options, and/or (vi) any suit, action, proceeding, claim or Loss resulting from an action initiated by any State of the United States of America for unpaid sales tax on all software license, service and maintenance sells conducted by the Company prior to the Closing.
By the Stockholders. There are a number of practical problems in making a determination pursuant to Section 145(d). First, many actions that give rise to indemnification claims will be brought against all directors and therefore preclude a determination by majority vote of disinterested directors. One solution might be to appoint additional disinterested directors to make a determination, although this course of action may present its own difficulties. Second, many corporations and directors will be reluctant to use the alternative of seeking stockholder approval, particularly for publicly held corporations where the approval process would be difficult and widely publicized. Third, the term “independent legal counsel” is not defined in Section 145 or applicable case law, and even if a well-established definition existed, a number of issues would arise in rendering a required opinion should experienced counsel agree to consider doing so.
By the Stockholders. The entitlement of the Indemnitee to indemnification shall be determined with respect to any person who is not a director or officer at the time of such determination by any means reasonably determined by the Company.
By the Stockholders. Each Stockholder, as to itself or himself, represents to the Company and the other Stockholders that:
By the Stockholders. Notwithstanding any other provision of law, the Certificate of Incorporation or these By-Laws, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote shall be required to alter, amend or repeal any provision of these By-Laws or to adopt new By-Laws.
By the Stockholders. Subject to the provisions of the Certificate of Incorporation, these Bylaws may be amended, altered, changed or repealed, or new Bylaws adopted, at any special meeting of the stockholders of the Corporation if duly called for that purpose (provided that, in the notice of such special meeting, notice of such purpose shall be given), or at any annual meeting, by the affirmative vote of the holders of a majority of the Voting Stock.
By the Stockholders. In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder will furnish to the Company in writing information regarding such holder's ownership of Registrable Securities and its intended method of distribution thereof and, to the extent permitted by law, shall, severally and not jointly, indemnify the Company, its directors, officers, employees and agents and each Person who controls (within the meaning of the Securities Act) the Company or such other indemnified Person against all Losses caused by any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission is caused by and contained in such information so furnished in writing by such holder expressly for use therein; PROVIDED, HOWEVER, that each holder's obligation to indemnify the Company hereunder shall, to the extent more than one holder is subject to the same indemnification obligation, be apportioned between each holder based upon the net amount received by each holder from the sale of Registrable Securities, as compared to the total net amount received by all of the holders of Registrable Securities sold pursuant to such registration statement. Notwithstanding the foregoing, no holder shall be liable to the Company for amounts in excess of the lesser of (i) such apportionment and (ii) the amount received by such holder in the offering giving rise to such liability.
By the Stockholders. From and after the Closing Date, the Stockholders, shall jointly and severally indemnify and hold harmless the Buyer and (if any) its successors and assigns, officers, directors, employees, stockholders, agents, Affiliates and any person who controls any of such persons within the meaning of the Securities Act (each, an “Indemnified Buyer Party”) from and against any liabilities, claims, demands, judgments, losses, costs, damages or expenses whatsoever (including reasonable attorneys’, consultants’ and other professional fees and disbursements, nature and description incurred by such Indemnified Buyer Party in connection therewith) (collectively, “Damages”) that such Indemnified Buyer Party may sustain, suffer or incur and that result from, arise out of or relate to: (a) any breach of any of the respective representations, warranties, covenants or agreements of the Company or any Stockholder; (b) any taxes of the Company with respect to any tax period or partial period ending on or before the Closing Date (or for any tax period or partial period beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date) and (c) for any undisclosed Liabilities of the Business not set forth on Schedule 4.9(a) hereto.
