Mandatory Indemnification. (a) Agreement to Indemnify. (i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event, other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the General Corporation Law of the State of Delaware (the "DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder.
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Mandatory Indemnification.
Subject to the terms of this Agreement: (a)
Agreement to Indemnify. (i) Indemnity in Third-Party Proceedings. In the event Third Party Actions. If Indemnitee is a person who was or is a party
to or witness in or is threatened to be made a party
to to, or
witness in is otherwise involved in, any Proceeding
by reason of (other than an
Indemnifiable Event, other than a Proceeding action by or in the right of the
Company to procure a judgement Company) by reason of the fact that Indemnitee is or was... an Agent of the Company, or by reason of anything done or not done by Indemnitee in its favor, any such capacity, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the General Corporation Law of the State of Delaware (the "DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation investigation, defense, settlement or Bylaws or the DGCL permitted prior to the adoption appeal of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Proceeding. (b) Derivative Actions. If Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment by reason of the fact that Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by Indemnitee in its favor, any such capacity, the Company shall indemnify Indemnitee from and against any and all Expenses actually and reasonably incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation investigation, defense, settlement or Bylaws or the DGCL permitted prior to the adoption appeal of such amendment). The Company will not indemnify the Indemnitee for Expenses Proceeding; except that no indemnification under this Section 3(a)(ii) related 4(b) shall be made in respect to any claim, issue or matter in such Proceeding for as to which Indemnitee has shall have been finally adjudged by a court to be liable to the Company, unless, Company by a court of competent jurisdiction unless and only to the extent that, that the Delaware Court of Chancery or any the court in which the such Proceeding was brought determines shall determine upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception indemnity for Amounts Covered such amounts which the Delaware Court of Chancery or such other court shall deem proper. (c) Actions where Indemnitee is Deceased. If Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by Insurance reason of the fact that Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by Indemnitee in any such capacity, and Other Sources. if, prior to, during the pendency of or after completion of such Proceeding Indemnitee is deceased, the Company shall indemnify Indemnitee's heirs, executors and administrators against all Expenses and liabilities of any type whatsoever to the extent Indemnitee would have been entitled to indemnification pursuant to this Agreement were Indemnitee still alive. (d) Certain Terminations. The termination of any Proceeding or of any claim, issue, or matter therein by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. (e) Limitations. Notwithstanding the foregoing, provisions of Sections 4(a), 4(b), 4(c) and 4(d) hereof, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to for which payment (and the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to Company's indemnification obligations under this Agreement shall not reduce be reduced by such payment) is actually made to or on behalf of Indemnitee, by the Company's obligations Company or otherwise, under an insurance policy, or under a valid and enforceable indemnity clause, by-law or agreement; and, in the event the Company has previously made a payment to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm an Expense or other sponsoring organization ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor liability of first resort of Indemnitee with respect to matters any type whatsoever for which indemnification payment is provided under this Agreement and that the Company will be obligated to make all payments due actually made to or for the benefit on behalf of Indemnitee under this Agreement without regard an insurance policy, or under a valid and enforceable indemnity clause, by-law or agreement, Indemnitee shall return to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses subsequently received by the Other Indemnitor to or for the benefit Indemnitee from such other source of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. indemnification.
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Mandatory Indemnification.
(a) Agreement to Indemnify. (i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited permitted by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, except as provided in Section 3(c), the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee behalf) by any directors and officers, or other type, of insurance maintained by the Company or pursuant to an insurance policy purchased and maintained other indemnity arrangements with third parties. -3- 4. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by Indemnitee at his the Company for some or her own expense a portion of any amounts otherwise indemnifiable Expenses or obligated to be made pursuant to this Agreement shall Other Liabilities but not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights entitled, however, to indemnification for the total amount of such Expenses and or Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees with Indemnitee that Liabilities, the Company is shall nevertheless indemnify Indemnitee for such total amount except as to the indemnitor of first resort of Indemnitee with respect to matters portion thereof for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses prohibited by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations provisions of the Company hereunder, and that Company's Bylaws or the DGCL. In any review or Proceeding to determine the extent of indemnification, the Company shall be obligated bear the burden to repay establish, by clear and convincing evidence, the Other Indemnitor for all lack of a successful resolution of a particular claim, issue or matter and which amounts so paid sought in indemnity are allocable to claims, issues or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. matters which were not successfully resolved.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited permitted by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("GCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL GCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization third party ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. (c) Obligation to Indemnify. Subject to the Company's obligation to reimburse Other Indemnitors, as set forth in Section 3(b), the Company's obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, manager, member, partner, employee, agent, attorney, consultant, member of the entity's governing body (whether constituted as a board of directors, board of managers, general partner or otherwise), fiduciary, deemed fiduciary, or in any other similar capacity, of any other corporation, partnership, limited liability company, joint venture, trust or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company's satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company. 4 4. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Expenses or Other Liabilities but not entitled, however, to indemnification for the total amount of such Expenses or Other Liabilities, the Company shall nevertheless indemnify Indemnitee for such total amount except as to the portion thereof for which indemnification is prohibited by the provisions of the Company's Bylaws or the GCL. In any review or Proceeding to determine the extent of indemnification, the Company shall bear the burden to establish, by clear and convincing evidence, the lack of a successful resolution of a particular claim, issue or matter and which amounts sought in indemnity are allocable to claims, issues or matters which were not successfully resolved.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or
witness witness, affiant or deponent in or is threatened to be made a party to or
witness witness, affiant or deponent in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilitie
...s incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and or Bylaws and the General Corporation Law of the State of Delaware (the "DGCL"), GCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Company's Certificate of Incorporation or Bylaws or the DGCL GCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. 3 (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an behalf) by any directors and officers, or other type, of insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees indemnity arrangements with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. third parties.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent permitted (and to the fullest extent not prohibited prohibited) by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("GCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL GCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event (b) Actions where Indemnitee is Deceased. If Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by Event, and if, prior to, during the pendency of or in after completion of such Proceeding the right of the Company to procure a judgment in its favor, Indemnitee is deceased, the Company shall indemnify Indemnitee from the Indemnitee's estate, heirs, executors and administrators against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions and Other Liabilities of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only any type whatsoever to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has would have been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) indemnification pursuant to this Agreement were the Indemnitee still alive. (c) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such amounts have actually been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee behalf) by any D&O insurance, or any other type of insurance, or pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees indemnity arrangements with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. third parties.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. 3 (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made behalf) by any directors and officers, or other type, of insurance maintained by the Company. Further, [except as provided in Section 3(c),] the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf) pursuant to an insurance policy purchased and maintained any indemnification arrangement for the benefit of Indemnitee provided by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to third party; provided however that this Agreement provision shall not reduce limit any such third party's equitable rights to contribution or indemnification from the Company's obligations Company with respect to Indemnitee pursuant to this Agreement. amounts so paid by the third party. (c) Company [WHERE SUCH DIRECTOR IS AFFILIATED WITH A VENTURE FUND OR SIMILAR SPONSORING ORGANIZATION][Company Obligations Primary. The Company hereby acknowledges that Indemnitee has or may have from time to time obtain certain rights to indemnification for or advancement of Expenses and Other Liabilities and/or insurance provided by a venture capital firm [name of VC or other sponsoring organization organization] ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement (i.e., its obligations to Indemnitee are primary and any obligation of the Other Indemnitor to advance of expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary) and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder. In the event that the Company provides any such repayment to the Other Indemnitor, the Company shall not be obligated to reimburse the Indemnitee for any Expenses or Other Liabilities related to such repayments. The Company will not assert that the Indemnitee must seek expense advancement or reimbursement, or indemnification, from the Other Indemnitor before the Company must perform its expense advancement and reimbursement, and indemnification obligations, under this Agreement. No advancement or payment by the Other Indemnitor on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing. The Other Indemnitor shall be subrogated to the extent of such advancement or payment to all of the rights of recovery which Indemnitee would have had against the Company if the Other Indemnitor had not advanced or paid any amount to or on behalf of Indemnitee. If for any reason a court of competent jurisdiction determines that the Other Indemnitor is not entitled to the subrogation rights described in the preceding sentence, the Other Indemnitor shall have the right of contribution by 4 the Company to the Other Indemnitor with respect to any advance or payment by the Other Indemnitor to or on behalf of the Indemnitee.]
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited permitted by the provisions of the Company's Certificate of Incorporation and Bylaws and the General Corporation Law of the State of Delaware (the "DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in amendment), provided that such Proceeding for which Indemnitee has been finally adjudged by a court to be liable indemnification is subject to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court exclusions set forth in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, Section 9 below. The parties hereto intend that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce provide to the fullest extent permitted by law for indemnification in excess of that expressly permitted by statute, including, without limitation, any indemnification provided by the Certificate of Incorporation, the Bylaws, vote of the Company's obligations to Indemnitee pursuant to this Agreement. (c) stockholders or disinterested directors or applicable law. (b) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to advancement and/or indemnification for Expenses and Other Liabilities provided by a venture capital firm or other sponsoring organization ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which advancement and/or indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The To the extent not in contravention of any insurance policy purchased by the Company, Subsidiary or Affiliate, the Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify pay Indemnitee for such Expenses or Other Liabilities hereunder. 4 4. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Expenses or Other Liabilities but not entitled, however, to indemnification for the total amount of such Expenses or Other Liabilities, the Company shall nevertheless indemnify Indemnitee for such total amount except as to the portion thereof for which indemnification is prohibited by this Agreement or the DGCL. In any review, process and/or Proceeding to determine the extent of indemnification to which Indemnitee is entitled, the Company shall bear the burden to establish, by clear and convincing evidence, the lack of a successful resolution of a particular claim, issue or matter and which amounts sought in indemnity are allocable to claims, issues or matters that were not successfully resolved.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event, other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the The Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including
... in preparation for) such a Proceeding related to an Indemnifiable Event to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("GCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL GCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, except as provided in Section 3(c), the Company shall not be obligated to indemnify make payments to Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee pursuant to an behalf) by any directors and officers, or other type, of insurance policy purchased and maintained by the Company (except to the extent that Indemnitee at his is required (by court order or her own expense of any otherwise) to return or surrender to the Company amounts that are otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. hereunder). (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by a venture capital firm [name of VC or other sponsoring organization organization] ("Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder.
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Mandatory Indemnification. (a) Agreement to Indemnify.
(i) Indemnity in Third-Party Proceedings. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event,
other than a Proceeding by or in the right of the Company to procure a judgement in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in
...preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the Delaware General Corporation Law of the State of Delaware (the "DGCL"), ("DGCL"), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). (ii) Indemnity in Proceedings by or in the Right of the Company. In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event by or in the right of the Company to procure a judgment in its favor, the Company shall indemnify Indemnitee from and against any and all Expenses incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the Company's Certificate of Incorporation and Bylaws and the DGCL, as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Certificate of Incorporation or Bylaws or the DGCL permitted prior to the adoption of such amendment). The Company will not indemnify the Indemnitee for Expenses under this Section 3(a)(ii) related to any claim, issue or matter in such Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. 3 (b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, but subject to Section 3(c), the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to the Indemnitee (or paid directly to a third party on Indemnitee's behalf); provided, however, that payment made to Indemnitee behalf) by any directors and officers or other type of insurance maintained by the Company or pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company's obligations to Indemnitee pursuant to this Agreement. other indemnity arrangements with third parties. (c) Company Obligations Primary. The Company hereby acknowledges that Indemnitee may have rights to indemnification indemnification, advancement or insurance for Expenses and Other Liabilities provided by a venture capital firm one or other sponsoring organization ("Other more entities (each, an "Other Indemnitor"). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the be provided by any Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the by or on behalf of any Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement reimbursement, payment or advancement of Other Liabilities or payment of Expenses by the or on behalf of any Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the any Other Indemnitor for all amounts so paid paid, reimbursed or reimbursed advanced to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder.
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