Common use of Determination of Eligibility Clause in Contracts

Determination of Eligibility. (a) All determinations whether indemnification of a person is required because the criteria set forth in Section 2 have been satisfied and whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 3 shall be made: (1) by the Board by a majority of a quorum. Directors who are at the time parties to the proceeding shall not be counted for determining either a majority or the presence of a quorum; (2) if a quorum under clause (1) cannot be obtained by a majority of a committee of the Board, consisting solely of two or more directors not at the time parties to the proceeding, duly designated to act in the matter by a majority of the full Board, including directors who are parties; (3) if a determination is not made under clause (1) or (2) by special legal counsel, selected either by a majority of the Board or a committee by vote pursuant to clause (1) or (2) or, if the requisite quorum of the full Board cannot be obtained and the committee cannot be established, by a majority of the full Board including directors who are parties; (4) if a determination is not made under clauses (1) to (3) by the shareholders, excluding the votes of shares held by parties to the proceeding; or (5) if an adverse determination is made under clauses (1) to (4) or under paragraph (b), or if no determination is made under clauses (1) to (4) or under paragraph (b) within 60 days after the termination of a proceeding or after a request for an advance of expenses, as the case may be, by a court in this state, which may be the same court in which the proceeding involving the person's liability took place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedings, a director, officer or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporation, the determination whether indemnification of this person is required because the criteria set forth in Section 2 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 3 may be made by an annually appointed committee of the Board, having at least one member who is a director. The committee shall report at least annually to the Board concerning its actions.

Determination of Eligibility. (a) All determinations whether indemnification of a person is required because the criteria set forth in Section 2 have been satisfied and whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 shall be made: (1) by the Board by a majority of a quorum. Directors who are at the time parties to the proceeding Proceeding shall not be counted for determining either a majority or the presence of a quorum; (2) if a quorum under clause (1) cannot be obtained obtained, by a majority of a committee of the Board, consisting solely of two or more directors not at the time parties to the proceedingProceeding, duly designated to act in the matter by a majority of the full Board, Board including directors who are parties; (3) if a determination is not made under clause (1) or (2) ), by special legal counselSpecial Legal Counsel, selected either by a majority of the Board or a committee by vote pursuant to clause (1) or (2) or, if the requisite quorum of the full Board cannot be obtained and the committee cannot be established, by a majority of the full Board including directors who are parties; (4) if a determination is not made under clauses (1) to (3) ), by the shareholders, excluding the votes of shares held by parties to the proceedingProceeding; or (5) if an adverse determination is made under clauses (1) to (4) or under paragraph (b), or if no determination is made under clauses (1) to (4) or under paragraph (b) within 60 days after the termination of a proceeding Proceeding or after a request for an advance of expenses, as the case may be, by a court in this state, which may be the same court in which the proceeding Proceeding involving the person's ’s liability took place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedingsProceeding, a director, officer or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporationCorporation, the determination whether indemnification of this person is required because the criteria set forth in Section 2 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 may be made by an annually appointed committee of the Board, having at least one member who is a director. The committee shall report at least annually to the Board concerning its actions.

Determination of Eligibility. (a) All determinations as to whether indemnification of a person is required because the criteria set forth stated in Section 2 13.2 have been satisfied and as to whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 shall 13.3 will be made: (1i) by the Board by a majority of a quorum. Directors who are at the time parties to the proceeding shall not be counted for determining either a majority or the presence of a quorum; (2) if a quorum under clause (1) cannot be obtained by a majority of a committee of the Board, consisting solely of two or more directors not at the time parties to the proceeding, duly designated to act in the matter by a majority of the full Board, including directors who are partiesDisinterested Managers; (3ii) if a determination is not made under clause (1) or (2) i), by special legal counselSpecial Legal Counsel, selected either by a majority Approval of the Board of Managers or by a committee authorized by vote pursuant to clause (1) or (2) or, if the requisite quorum Board of the full Board cannot be obtained and the committee cannot be established, by a majority of the full Board including directors who are partiesManagers; (4iii) if a determination is not made under clauses (1i) to or (3) ii), by a majority of the shareholdersMembers, excluding the votes of shares held to be cast by Members who are parties to the proceedingProceeding; or (5iv) if an adverse determination is made under clauses (1i) to through (4iii) or under paragraph (bSection 13.5(d), or if no determination is made under clauses (1i) to through (4iii) or under paragraph (bSection 13.5(b) within 60 sixty (60) days after the termination of a proceeding Proceeding or after a request for an advance of expenses, as the case may be, by a court in this stateFlorida, which may be the same court in which the proceeding Proceeding involving the person's liability took is taking or has taken place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedingsProceeding, a directorManager, officer officer, or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporationCompany, the determination whether indemnification of this person is required because the criteria set forth in Section 2 13.2 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 13.3 may be made by an annually appointed committee of the BoardBoard of Managers, if any, having at least one member who is a directorManager. The This committee shall report at least annually to the Board concerning its actionsof Managers.

Determination of Eligibility. (a) All determinations of whether indemnification of a person is required because the criteria set forth in Section 2 have been satisfied and whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 shall be made: (1) by the Board by a majority of a quorum. Directors , provided that directors who are at the time parties to the proceeding Proceeding shall not be counted for determining either a majority or the presence of a quorum; (2) if a quorum under clause (1) cannot be obtained obtained, by a majority of a committee of the Board, consisting solely of two or more directors not at the time parties to the proceedingProceeding, duly designated to act in the matter by a majority of the full Board, Board including directors who are parties; (3) if a determination is not made under clause (1) or (2) ), by special legal counselSpecial Legal Counsel, selected either by a majority of the Board or a committee by vote pursuant to clause (1) or (2) or, if the requisite quorum of the full Board cannot be obtained and the committee cannot be established, by a majority of the full Board including directors who are parties; (4) if a determination is not made under clauses (1) to (3) ), by the affirmative vote of the shareholders, excluding the votes of as required by Minnesota Statutes, Section 302A.437, provided that shares held by parties to the proceedingProceeding shall not be counted in determining the presence of a quorum and shall not be considered present and entitled to vote on the determination; or (5) if an adverse determination is made under clauses (1) to (4) or under paragraph (b), or if no determination is made under clauses (1) to (4) or under paragraph (b) within 60 days after the termination of a proceeding Proceeding or after a request for an advance of expenses, as the case may be, by a court in this state, which may be the same court in which the proceeding Proceeding involving the person's ’s liability took place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedings, a director, officer or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporation, the determination whether indemnification of this person is required because the criteria set forth in Section 2 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 3 may be made by an annually appointed committee of the Board, having at least one member who is a director. The committee shall report at least annually to the Board concerning its actions.

Determination of Eligibility. (a) All determinations as to whether indemnification of a person is required because the criteria set forth stated in Section 2 16.02 have been satisfied and as to whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 3 shall 16.03 will be made: (1i) by the Board Management Committee by a majority of a quorum. Directors quorum (Managers who are at the time parties to the proceeding shall not be counted for determining either a majority or the presence of a quorum); (2ii) if a quorum under clause (1i) cannot be obtained obtained, by a majority of a committee of the BoardManagement Committee, if any, consisting solely of two or more directors Managers not at the time parties to the proceeding, duly designated to act in the matter by a majority of the full BoardManagement Committee, if any, including directors Managers who are parties; (3iii) if a determination is not made under clause (1i) or clause (2) ii), by special legal counsel, selected either by a majority of the Board Management Committee or a committee by vote pursuant to clause (1i) or clause (2ii) or, if the requisite quorum of the full Board Management Committee cannot be obtained and the committee cannot be established, by a majority of the full Board Management Committee, if any, including directors Managers who are parties; (4iv) if a determination is not made under clauses (1i) to through (3) iii), by the shareholdersMembers, excluding the votes of shares held by parties to the proceedingproceedings; or (5v) if an adverse determination is made under clauses (1i) to through (4iv) or under paragraph (b), or if no determination is made under clauses (1i) to through (4iv) or under paragraph (b) within 60 sixty (60) days after the termination of a proceeding or after a request for an advance of expenses, as the case may be, by a court in this statethe Superior Court of the District of Columbia, which may be the same court in which the proceeding involving the person's liability took is taking or has taken place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedings, a directormanager, officer officer, or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporationCompany, the determination whether indemnification of this person is required because the criteria set forth in Section 2 16.02 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 3 16.03 may be made by an annually appointed committee of the BoardManagement Committee, if any, having at least one member who is a directorManager. The committee shall report at least annually to the Board concerning its actionsManagement Committee.

Determination of Eligibility. (a) All determinations of whether indemnification of a person is required because the criteria set forth in Section 2 have been satisfied and whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 shall be made: (1) by the Board by a majority of a quorum. Directors , provided that directors who are at the time parties to the proceeding Proceeding shall not be counted for determining either a majority or the presence of a quorum; (2) if a quorum under clause (1) cannot be obtained obtained, by a majority of a committee of the Board, consisting solely of two or more directors not at the time parties to the proceedingProceeding, duly designated to act in the matter by a majority of the full Board, Board including directors who are parties; (3) if a determination is not made under clause (1) or (2) ), by special legal counselSpecial Legal Counsel, selected either by a majority of the Board or a committee by vote pursuant to clause (1) or (2) or, if the requisite quorum of the full Board cannot be obtained and the committee cannot be established, by a majority of the full Board including directors who are parties; (4) if a determination is not made under clauses (1) to (3) ), by the affirmative vote of the shareholders, excluding the votes of as required by Minnesota Statutes, Section 302A.437, provided that shares held by parties to the proceedingProceeding shall not be counted in determining the presence of a quorum and shall not be considered present and entitled to vote on the determination; or (5) if an adverse determination is made under clauses (1) to (4) or under paragraph (b), or if no determination is made under clauses (1) to (4) or under paragraph (b) within 60 days after the termination of a proceeding Proceeding or after a request for an advance of expenses, as the case may be, by a court in this state, which may be the same court in which the proceeding Proceeding involving the person's ’s liability took place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedingsProceeding, a director, officer or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the corporationCorporation, the determination whether indemnification of this person is required because the criteria set forth in Section 2 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding Proceeding as provided in Section 3 may be made by an annually appointed committee of the Board, having at least one member who is a director. The committee shall report at least annually to the Board concerning its actions.