Common use of Determination of Right of Indemnification Clause in Contracts

Determination of Right of Indemnification. Any indemnification under Sections 1(a) above (unless ordered by a court) shall be made by the Corporation only following receipt of a written request by the Indemnitee and only as authorized in the specific case upon a determination that indemnification of the Indemnitee is permissible in the circumstances because Indemnitee has met the applicable standard of conduct set forth in Section 1(a). Such determination shall be made within thirty (30) days from the date the written request of the Indemnitee is received by the Corporation by (i) a majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to such Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted in the determination); or (iv) by independent special legal counsel. Such independent special legal counsel shall be selected by (i) the majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties to the Proceeding may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or more directors not at the time parties to the Proceeding cannot be designated to select independent special legal counsel, then such independent special legal counsel may be selected by majority vote of the full board of directors (in which selection directors who are parties may participate). The term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" shall not include any person who, under the applicable standards of professional conduct prevailing at the time of the representation, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee's rights under the provisions of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expenses. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization and evaluation as to reasonableness of expenses shall be made by those entitled to select such counsel.

Determination of Right of Indemnification. Any indemnification (a) Indemnification and advancement of expenses under Sections 1(a) above (unless ordered by a court) shall this Agreement may not be made by the Corporation only following receipt of unless authorized for a written request by the Indemnitee and only as authorized in the specific case upon Proceeding after a determination has been made that indemnification of the Indemnitee is permissible in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 1(a)1 hereof. Such determination shall be made within thirty (30) days from the date the written request of the Indemnitee is received by the Corporation by made: (i) by the Corporation's Board of Directors (the "Board") by a majority vote of a quorum of the board of directors consisting of directors who are not not, at the time time, parties to such the Proceeding; (ii) , or, if such a quorum cannot be obtained, then by a majority vote of a committee of the Board consisting solely of two or more directors not, at the time, parties to such Proceeding and who were duly designated to act in the matter by a majority vote of the board of directors (full Board in which designation the designated directors who are parties may participate; (ii) consisting solely by special legal counsel selected by the Board or a committee of two (2the Board by vote as set forth in Section 3(a)(i) or more directors hereof, or, if the requisite quorum of the full Board cannot at be obtained therefor and the time committee cannot be established, by a majority vote of the full Board in which director who are parties to the Proceedingmay participate; or (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted in the determination); or (iv) by independent special legal counsel. Such independent special legal counsel shall be selected by (i) the majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties to the Proceeding may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or more directors not at the time parties to the Proceeding cannot be designated to select independent special legal counsel, then such independent special legal counsel may be selected by majority vote of the full board of directors (in which selection directors who are parties may participate). The term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" shall not include any person who, under the applicable standards of professional conduct prevailing at the time of the representation, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee's rights under the provisions stockholders of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expenses. . (b) Authorization of indemnification and evaluation determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible. However, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization of indemnification and evaluation determination as to reasonableness of expenses shall be made by those entitled to select in the manner specified in Section 3(a)(ii) hereof for selection of such counsel. (c) Shares held by directors who are parties to the Proceeding may not be voted on the subject matter under Section 3 hereof.

Determination of Right of Indemnification. Any indemnification under Sections 1(a) above Section 1 hereof (unless ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Corporation only following receipt of a written request by the Indemnitee and Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is permissible proper in the circumstances because the Indemnitee has met the applicable standard standards of conduct and satisfied the conditions to indemnification set forth in Section 1(a)1 hereof. Such determination shall be made (a) by the Board by a majority vote of directors who were not parties to such action, suit or proceeding or (b) if there are no such directors, a majority of such directors decide to delegate such determination to Independent Legal Counsel (as defined below) or the Board declines to provide indemnification or fails to make such determination within thirty (30) 60 days from the date of the written request of Indemnitee therefor, and such Indemnitee believes indemnification is warranted, then by Independent Legal Counsel in a written opinion. "Independent Legal Counsel" shall be determined as follows: Indemnitee shall provide the Indemnitee is received by the Corporation by (i) Company with a majority vote list of a quorum three recognized law firms with lawyers with significant experience in advising clients or litigating director or officer indemnification claims on behalf of the board of directors consisting of directors parties who are not at allegedly provided or denied indemnification coverage (collectively, the time parties to such Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted in the determination"Law Firms"); or (iv) by independent special legal counsel. Such independent special legal counsel shall be selected by (i) the majority vote of a quorum None of the board of directors consisting of directors who are not at Law Firms shall have provided, within the time parties then previous five years, any legal services to the Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties to the Proceeding may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or more directors not at the time parties to the Proceeding cannot be designated to select independent special legal counsel, then such independent special legal counsel may be selected by majority vote any of the full board of directors Indemnitee, the Company or his, her or its Affiliates (as defined in which selection directors who are parties may participateMerger Agreement). The term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" Company shall not include any person who, under the applicable standards of professional conduct prevailing at the time then select one of the representation, would have a conflict of interest in representing either Law Firms to provide the Corporation or Indemnitee in an action to determine Indemnitee's rights under the provisions of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expensesdetermination described immediately above. Authorization Any determination of indemnification and evaluation as made pursuant to reasonableness of expenses this Section 2 shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization final and evaluation as to reasonableness of expenses shall be made by those entitled to select such counselnon-appeallable absent manifest error.

Determination of Right of Indemnification. Any indemnification under Sections 1(a) above Section 1 (unless otherwise ordered by a court) shall be made by the Corporation only following receipt of a written request demand by the Indemnitee and only as authorized (x) if, in the specific case there has been no determination that indemnification of the Indemnitee is not proper in the circumstances because the Indemnitee has not met the applicable standard of conduct set forth in Section 1 or (y) if (but only if) required by Delaware law, upon a determination that indemnification of the Indemnitee is permissible proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 1(a)1. Such Any such determination shall be made within thirty (30) 30 days from the date the written request of the Indemnitee is received by the Corporation by either (i) by the Board of Directors by a majority vote of a quorum of the board of directors consisting of directors who are not at the time or were not parties to such Proceeding; , (ii) if such a quorum canis not obtainable or, even if obtainable if a quorum of disinterested directors so directs, or, if a change in control (as defined below) has occurred subsequent to the Effective Date of the Plan of Reorganization, by the written opinion of independent legal counsel selected by the Board of Directors of the Corporation (or if a change of control has so occurred, selected by the Indemnitee with the consent of the Corporation, which consent shall not be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate) consisting solely of two (2unreasonably withheld) or more directors not at the time parties to the Proceeding; (iii) by the shareholders (but shares owned by or voted under stockholders of the control of directors who are at the time parties to the Proceeding may not be voted Corporation. A "change in the determination); or (iv) by independent special legal counsel. Such independent special legal counsel control" shall be selected by deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the majority vote Securities Exchange Act of 1934, as amended), other than a quorum Trustee or other fiduciary holding securities under an employee benefit plan of the Corporation or a corporation owned directly or indirectly by the stockholders of the Corporation in substantially the same proportions as their ownership of stock in the Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under such Act), directly or indirectly of securities of the Corporation representing 51% or more of the total voting power represented by the Corporation's then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the board of directors consisting of directors who are not at the time parties to the Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties to the Proceeding may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or more directors not at the time parties to the Proceeding cannot be designated to select independent special legal counsel, then such independent special legal counsel may be selected by majority vote of the full board of directors (in which selection directors who are parties may participate). The term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law Corporation and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" shall not include any person who, under the applicable standards of professional conduct prevailing at the time of the representation, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee's rights under the provisions of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expenses. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization and evaluation as to reasonableness of expenses shall be made by those entitled to select such counsel.new

Determination of Right of Indemnification. Any indemnification under Sections 1(a) above Section 1 (unless otherwise ordered by a court) shall be made by the Corporation only following receipt of a written request demand by the Indemnitee and only as authorized (x) if, in the specific case there has been no determination that indemnification of the Indemnitee is not proper in the circumstances because the Indemnitee has not met the applicable standard of conduct set forth in Section 1 or (y) if (but only if) required by Delaware law, upon a determination that indemnification of the Indemnitee is permissible proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 1(a)1. Such Any such determination shall be made within thirty (30) 30 days from the date the written request of the Indemnitee is received by the Corporation by either (i) by the Board of Directors by a majority vote of a quorum of the board of directors consisting of directors who are not at the time or were not parties to such Proceeding; , (ii) if such a quorum canis not obtainable or, even if obtainable if a quorum of disinterested directors so directs, or, if a change in control (as defined below) has occurred, by the written opinion of independent legal counsel selected by the Board of Directors of the Corporation (or if a change of control has so occurred, selected by the Indemnitee with the consent of the Corporation, which consent shall not be obtainedunreasonably withheld) or (iii) by the stockholders of the Corporation. A “change in control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a Trustee or other fiduciary holding securities under an employee benefit plan of the Corporation or a corporation owned directly or indirectly by majority vote the stockholders of a committee duly designated the Corporation in substantially the same proportions as their ownership of stock in the Corporation, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under such Act), directly or indirectly of securities of the Corporation representing 51% or more of the total voting power represented by the Corporation’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the board of directors of the Corporation and any new director whose election by the board of directors (or nomination for election by the Corporation’s stockholders was approved by a vote of at least two-thirds of the directors then still in which designation office who either were directors who are parties may participate) consisting solely of two (2) or more directors not at the time parties beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to the Proceeding; constitute a majority thereof, or (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted in the determination); or (iv) by independent special legal counsel. Such independent special legal counsel shall be selected by (i) the majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the Proceeding; (ii) if such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties to the Proceeding may participate) consisting solely of two (2) or more directors not at the time parties to the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or more directors not at the time parties to the Proceeding cannot be designated to select independent special legal counsel, then such independent special legal counsel may be selected by majority vote of the full board of directors (in which selection directors who are parties may participate). The term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" shall not include any person who, under the applicable standards of professional conduct prevailing at the time of the representation, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee's rights under the provisions of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expenses. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization and evaluation as to reasonableness of expenses shall be made by those entitled to select such counsel.stockholders