Common use of Determination of Right of Indemnification Clause in Contracts

Determination of Right of Indemnification. Any indemnification under Section 1 (unless otherwise ordered by a court) shall be made by the Corporation only following receipt of a written demand by the Indemnitee and only (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 proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 1. Any such determination shall be made within 30 days from the date the written request of the Indemnitee is received by the Corporation either (i) by the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such Proceeding, (ii) if such a quorum is 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 unreasonably 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 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 of the Corporation and any new

Determination of Right of Indemnification. Any indemnification under Section 1 Sections 1(a) above (unless otherwise ordered by a court) shall be made by the Corporation only following receipt of a written demand request by the Indemnitee and only (x) if, as authorized 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 proper permissible in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 11(a). Any such Such determination shall be made within 30 thirty (30) days from the date the written request of the Indemnitee is received by the Corporation either by (i) by the Board of Directors by a majority vote of a quorum of the board of directors consisting of directors who are not or were not at the time parties to such Proceeding, ; (ii) if such a quorum is cannot obtainable orbe obtained, even if obtainable if by majority vote of a quorum committee duly designated by the board of disinterested directors so directs, or, if a change (in control which designation directors who are parties may participate) consisting solely of two (as defined below2) has occurred subsequent or more directors not at the time parties 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 unreasonably withheld) or Proceeding; (iii) by the stockholders shareholders (but shares owned by or voted under the control of directors who are at the Corporationtime parties to the Proceeding may not be voted in the determination); or (iv) by independent special legal counsel. A "change in control" Such independent special legal counsel shall be deemed to have occurred if selected by (i) any "person" (as such term is used in Sections 13(d) and 14(d) the majority vote of the Securities Exchange Act a quorum 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 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 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 any newevaluation 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. 4.

Determination of Right of Indemnification. Any indemnification under Section 1 (unless otherwise ordered by a court) shall be made by the Corporation only following receipt of a written demand by the Indemnitee and only (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 proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 1. Any such determination shall be made within 30 days from the date the written request of the Indemnitee is received by the Corporation either (i) by the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such Proceeding, (ii) if such a quorum is 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 Reorganizationoccurred, 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 unreasonably 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 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 ’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 newnew 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 office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders

Determination of Right of Indemnification. Any indemnification under Section 1 hereof (unless otherwise ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Corporation Company only following receipt of a written demand by the Indemnitee and only (x) if, as authorized 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 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 11 hereof. Any such Such determination shall be made within 30 days from the date the written request of the Indemnitee is received by the Corporation either (ia) by the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such Proceedingaction, suit or proceeding or (iib) if there are no such directors, a quorum is not obtainable or, even if obtainable if a quorum majority of disinterested such directors so directs, or, if a change in control decide to delegate such determination to Independent Legal Counsel (as defined below) has occurred subsequent or the Board declines to the Effective Date provide indemnification or fails to make such determination within 60 days of the Plan written request of ReorganizationIndemnitee therefor, and such Indemnitee believes indemnification is warranted, then by the Independent Legal Counsel in a 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 unreasonably withheld) or (iii) by the stockholders of the Corporationopinion. A "change in controlIndependent Legal Counsel" shall be deemed to have occurred if (i) any "person" (determined as such term is used follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience in Sections 13(d) and 14(d) advising clients or litigating director or officer indemnification claims on behalf of the Securities Exchange Act of 1934parties who allegedly provided or denied indemnification coverage (collectively, as amendedthe "Law Firms"), other than a Trustee or other fiduciary holding securities under an employee benefit plan . None of the Corporation or a corporation owned directly or indirectly by Law Firms shall have provided, within the stockholders then previous five years, any legal services to any of the Corporation in substantially Indemnitee, the same proportions as their ownership of stock in the CorporationCompany or his, is her or becomes the "beneficial owner" its Affiliates (as defined in Rule 13d-3 under such ActMerger Agreement), directly or indirectly of securities . The Company shall then select one of the Corporation representing 51% or more Law Firms to provide the determination described immediately above. Any determination 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 indemnification made pursuant to this Section 2 shall be final and any newnon-appeallable absent manifest error.