Common use of Consequences of Determination; Remedies of Indemnitee Clause in Contracts

Consequences of Determination; Remedies of Indemnitee. The Company shall be bound by and shall have no right to challenge a Favorable Determination. If an Adverse Determination is made, or if for any other reason the Company does not make timely indemnification payments or advances of Expenses, or the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided hereunder, Indemnitee shall have the right to commence a Proceeding before a court of competent jurisdiction to challenge such Adverse Determination, and/or to require the Company to make such payments or advances, and/or to recover damages for breach of this Agreement, and/or to recover under any directors’ and officers’ liability insurance policies maintained by the Company (and the Company shall have the right to defend its position in such Proceeding and to appeal any adverse judgment in such Proceeding but shall not oppose Indemnitee’s right to seek such adjudication). Indemnitee shall be entitled to be indemnified for all Expenses incurred in connection with such a Proceeding and to have such Expenses advanced by the Company in accordance with Section 9 of this Agreement, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery. The Company shall not oppose Indemnitee’s right to seek any such adjudication. If Indemnitee fails to challenge an Adverse Determination, or if Indemnitee challenges an Adverse Determination and such Adverse Determination has been upheld by a final judgment of a court of competent jurisdiction from which no appeal can be taken, then, to the extent and only to the extent required by such Adverse Determination or final judgment, the Company shall not be obligated to indemnify or advance Expenses to Indemnitee under this Agreement. In the event that an Adverse Determination has been made, any judicial proceeding commenced pursuant to this Section 10(f) shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the Adverse Determination. The Company authorizes the Indemnitee from time to time to retain one counsel of Indemnitee’s choice reasonably acceptable to the Board of Directors, at the expense of the Company to the extent provided under applicable Law, to advise and represent Indemnitee in connection with any such judicial adjudication or recovery, including without limitation, the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company; provided that Indemnitee shall have reasonably concluded based on written advice of independent counsel that there is a conflict of interest between the Company and Indemnitee with respect to any judicial action. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 10 that the procedures and presumptions of this Agreement are not valid, binding and enforceable.

Consequences of Determination; Remedies of Indemnitee. The Company Companies shall be bound by and shall have no right to challenge a Favorable Determination. If an Adverse Determination is made, or if for any other reason the Company does Companies do not make timely indemnification payments or advances of Expenses, or the Company Companies or any other person takes any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided hereunder, Indemnitee shall have the right to commence a Proceeding before a court of competent jurisdiction to challenge such Adverse Determination, and/or to require the Company Companies to make such payments or advances, and/or to recover damages for breach of this Agreement, and/or to recover under any directors’ and officers’ liability insurance policies maintained by the Company Companies (and the Company Companies shall have the right to defend its their position in such Proceeding and to appeal any adverse judgment in such Proceeding but shall not oppose Indemnitee’s right to seek such adjudication). Indemnitee shall be entitled to be indemnified for all Expenses incurred in connection with such a Proceeding and to have such Expenses advanced by the Company Companies in accordance with Section 9 of this Agreement, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery. The Company Companies shall not oppose Indemnitee’s right to seek any such adjudication. If Indemnitee fails to challenge an Adverse Determination, or if Indemnitee challenges an Adverse Determination and such Adverse Determination has been upheld by a final judgment of a court of competent jurisdiction from which no appeal can be taken, then, to the extent and only to the extent required by such Adverse Determination or final judgment, the Company Companies shall not be obligated to indemnify or advance Expenses to Indemnitee under this Agreement. In the event that an Adverse Determination has been made, any judicial proceeding commenced pursuant to this Section 10(f) shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the Adverse Determination. The Company authorizes Companies authorize the Indemnitee from time to time to retain one counsel of Indemnitee’s choice reasonably acceptable to the Board of Directors, at the expense of the Company Companies to the extent provided under applicable Law, to advise and represent Indemnitee in connection with any such judicial adjudication or recovery, including without limitation, the initiation or defense of any litigation or other legal action, whether by or against the Company Companies or any director, officer, stockholder or other person affiliated with the CompanyCompanies; provided that (A) the employment of counsel by Indemnitee has been previously authorized by the Companies and (B) Indemnitee shall have reasonably concluded based on written advice of independent counsel that there is a conflict of interest between the Company Companies and Indemnitee with respect to any judicial action. The Company Companies shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 10 that the procedures and presumptions of this Agreement are not valid, binding and enforceable.