(i) | An award of a neutral arbitrator selected by the parties; or |
(ii) | A final adjudication by a court of competent jurisdiction. |
(i) | Based upon or attributable to [Director][Officer] gaining in fact any personal profit or advantage to which [Director][Officer] is not entitled; or |
(ii) | For an accounting of profits in fact made from the purchase or sale by [Director][Officer] of securities of the Company within the meaning of Section 16 of the Securities Exchange Act of 1934 as amended, or similar provisions of any state law; or |
(iii) | Resulting from [Director][Officer]’s knowing, fraudulent, dishonest or willful misconduct; or |
(iv) | The payment of which by the Company under this Agreement is not permitted by applicable law; or |
(v) | Which are not within the Covered Amount, i.e., which are insured in type and amount under any directors’ and officers’ liability insurance maintained by the Company from time to time. |
(a) | The Company shall have no obligation to indemnify [Director][Officer] for and hold him harmless from any Loss or Expense which has been Determined to constitute an Excluded Claim. |
(b) | The Company shall have no obligation to indemnify [Director][Officer] and hold him harmless for any Loss or Expense to the extent that [Director][Officer] is indemnified by the Company pursuant to the Company’s bylaws or otherwise indemnified. |
(a) | Promptly after receipt by [Director][Officer] of notice of the commencement of or the threat of commencement of any action, suit or proceeding, [Director][Officer] shall, if indemnification with respect thereto may be sought from the Company under this Agreement, notify the Company of the commencement thereof. |
(b) | If, at the time of the receipt of such notice, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the respective policies in favor of [Director][Officer]. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of [Director][Officer], all Losses and Expenses payable as a result of such action, suit or proceeding in accordance with the terms of such policies. |
(c) | To the extent the Company does not, at the time of the commencement of or the threat of commencement of such action, suit or proceeding, have applicable directors’ and officers’ liability insurance, or if a Determination is made that any Expenses arising out of such action, suit or proceeding will not be payable under the directors’ and officers’ liability insurance then in effect, the Company shall be obligated to pay the Expenses of any such action, suit or proceeding in advance of the final disposition thereof; and the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding with counsel satisfactory to [Director][Officer], upon the delivery to [Director][Officer] of written notice of its election so to do. After delivery of such notice, the Company will not be liable to [Director][Officer] under this Agreement for any legal or other Expenses subsequently incurred by [Director][Officer] in connection with such defense other than reasonable Expenses of investigation, provided that [Director][Officer] shall have the right to employ its counsel in any such action, suit or proceeding, but the fees and expenses of such counsel incurred after delivery of notice from the Company of its assumption of such defense shall be at [Director][Officer]’s expense, provided further that if (i) the employment of counsel by [Director][Officer] has been previously authorized by the Company, (ii) [Director][Officer] shall have reasonably concluded that there may be a conflict of interest between the Company and [Director][Officer] in the conduct of any such defense, or (iii) the Company shall not, in fact, have employed counsel to assume the defense of such action, or (iv) [Director][Officer] necessarily had to consult with counsel or counsel had to act on [Director][Officer]’s behalf prior to the time that Company‑retained outside counsel was able to act, the fees and expenses of counsel shall be at the expense of the Company. |
(d) | All payments on account of the Company’s indemnification obligations under this Agreement shall be made within sixty (60) days of [Director][Officer]’s written request therefor unless a Determination is made that the claims giving rise to [Director][Officer]’s request are Excluded Claims or otherwise not payable under this Agreement, provided that all payments on account of the Company’s obligations to pay Expenses under Paragraph 4(c) of this Agreement prior to the final disposition of an action, suit or proceeding shall be made within twenty (20) days of [Director][Officer]’s written request therefor and such obligation shall not be subject to any such Determination but shall be subject to Paragraph 4(e) of this Agreement. |
(e) | [Director][Officer] agrees that he will reimburse the Company for all Losses and Expenses paid by the Company in connection with any action, suit or proceeding against [Director][Officer] in the event and only to the extent that a Determination shall have been made by a court in a final adjudication or by final and binding arbitration from which there is no further right of appeal that the [Director][Officer] is not entitled to be indemnified by the Company for such Expenses because the claim is an Excluded Claim or because [Director][Officer] is otherwise not entitled to payment under this Agreement. |
(a) | In any action for indemnification, the burden of proving that indemnification is not required under this Agreement shall be on the Company. |
(b) | In the event that any action is instituted by [Director][Officer] under this Agreement, or to enforce or interpret any of the terms of this Agreement, [Director][Officer] shall be entitled to be paid all court and arbitrator’s costs and expenses, including reasonable counsel fees, incurred by [Director][Officer] with respect to such action, unless the court or an arbitrator determines that each of the material assertions made by [Director][Officer] as a basis for such action were not made in good faith or were frivolous. |
(c) | [Director][Officer] may elect to submit any action under this Agreement to final and binding arbitration. Any reference to arbitration herein shall include the rights of the parties to move to vacate or confirm an arbitrator’s award under California law. |