Common use of Determination of Right to Indemnification Clause in Contracts

Determination of Right to Indemnification. Any indemnification under this Agreement shall be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made (i) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

Determination of Right to Indemnification. Prior to indemnifying an Indemnitee pursuant to this Agreement, unless ordered by a court, the Corporation shall determine that such Indemnitee is entitled thereto under the terms of this Agreement. Any indemnification determination that a person shall or shall not be indemnified under this Agreement shall be made by the Company unless a determination is made that indemnification board of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made (i) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee quorum consisting of directors who were not parties to the action, suit or proceeding, or if such quorum is not obtainable, or even if obtainable, if a quorum of disinterested directors designated by majority vote of disinterested directorsso directs, even if less than a quorum, (iii) by a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counselcounsel in a written opinion or by the stockholders, or (v) by a court of competent jurisdictionand such determination shall be final and binding upon the Corporation; provided, however, that if a Change in Control has occurredthe event such determination is adverse to the Indemnitee, such Indemnitee shall have the determination with respect to Indemnitee’s right to maintain an action in any court of competent jurisdiction against the Corporation to determine whether or not such Indemnitee is entitled to such indemnification hereunder. If such court action is successful and the Indemnitee is determined to be entitled to such indemnification, such Indemnitee shall be made only by independent legal counsel selected by Indemnitee and approved reimbursed by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company Corporation for all fees and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees) actually and reasonably incurred in connection with any such action (including without limitation the investigation, defense, settlement or appeal of such action), claims, liabilities and damages arising out of . This Agreement shall be applicable to any claim asserted after the date hereof whether such claim arises from acts or relating to this Agreement omissions occurring before or its engagement pursuant heretoafter the date hereof.

Determination of Right to Indemnification. Any Upon written request by the Indemnitee for indemnification under this Agreement pursuant to Section 5.1 with respect to any Proceeding, a determination, if, but only if, required by applicable law, with respect to the Indemnitee’s entitlement thereto will be made upon the Final Disposition of such Proceeding: (a) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be made delivered to the Indemnitee or (b) if a Change in Control shall not have occurred, by any of the Company unless a determination is made that indemnification following methods, which shall be at the election of such Indemnitee is not proper in the circumstances because he has not met Board or the applicable standards of conduct set forth in Sections 1 or 2Disinterested Directors, as applicablethe case may be, hereof. Any such determination shall be made (i) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”)all Disinterested Directors, even if though less than a quorumquorum of the Board, (ii) by a committee of Disinterested Directors designated by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directorsall Disinterested Directors, even if though less than a quorumquorum of the Board, (iii) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as Board, a copy of which shall be delivered to whether and to what extent Indemnitee would be permitted to be indemnified under applicable lawthe Indemnitee, or (iv) if so directed by the Board, by the stockholders of the Company. The Company agrees will promptly advise the Indemnitee in writing with respect to pay any determination that the reasonable fees Indemnitee is or is not entitled to indemnification, including a description of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of reason or relating to this Agreement or its engagement pursuant heretobasis for which indemnification has been denied.

Determination of Right to Indemnification. Any indemnification (but not advancement of expenses) under this Agreement (unless ordered by a court) shall be made by the Company unless only as authorized in the specific case upon a determination is made that indemnification of such the Indemnitee is not proper in the circumstances because he or she has not met the applicable standards standard of conduct set forth in Sections 1 the DGCL, as the same exists or 2hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment). Such determination shall be made with respect to the Indemnitee as a director, officer, partner, member, principal, trustee or person holding a comparable position, as applicable, hereof. Any at the time of such determination shall be made determination: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion; or (ii) if a Change in Control shall not have occurred, (a) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”)Disinterested Directors, even if though less than a quorum, (iib) by a committee of Disinterested Directors designated by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directorsDisinterested Directors, even if though less than a quorum, (iiic) if there are no such Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counselwritten opinion, or (vd) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretostockholders.

Determination of Right to Indemnification. Any Anything contained elsewhere herein to the contrary notwithstanding, any indemnification under this Agreement Sections 2 through 4 hereinabove, inclusive, shall (unless ordered by a court) not be made paid by the Company unless a determination is made made, as hereinafter provided, that indemnification of such Indemnitee is not proper in the circumstances and not excluded because he of the provisions of Section 8 or 9. The determination as to whether or not Indemnitee has not met the applicable standards standard of conduct set forth in Sections 1 required to qualify and entitle Indemnitee, partially or 2fully, as applicable, hereof. Any such determination shall to indemnification under the provisions of any provision of Section 2 hereof may be made (i) either by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”)such action, suit or proceeding, even if though less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested or if there are no such directors, even or if less than such directors so direct, by independent legal counsel (who may be the outside counsel regularly employed by Company) in a quorumwritten opinion, (iii) or by a vote the stockholders of stockholders who are not at that time parties Company. The fees and expenses of counsel in connection with making said determination contemplated hereunder shall be paid by Company, and, if requested by such counsel, Company shall give such counsel an appropriate written agreement with respect to the Proceeding in question holding a majority payment of their fees and expenses and such other matters as may be reasonably requested by counsel. If the outstanding shares Person (including the Board of stock of all classes entitled to vote on the matterDirectors, voting as a single class, (iv) by independent legal counsel, the stockholders or (va court) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, making the determination with respect to Indemnitee’s right hereunder shall determine that Indemnitee is entitled to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and some claims, issues or matters involved in the action, suit or proceeding but not as to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay others, such Person shall reasonably prorate the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ ' fees), judgments, penalties, fines and amounts paid in settlement with respect to which indemnification is sought by Indemnitee among such claims, liabilities issues or matters. If, and damages arising out of to the extent that, it is finally determined hereunder that Indemnitee is not entitled to indemnification, then Indemnitee agrees to reimburse Company for all expenses advanced or relating to this Agreement prepaid hereunder, or its engagement pursuant heretothe proper proportion thereof.

Determination of Right to Indemnification. Any Upon written request by Indemnitee for indemnification under this Agreement pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a majority vote of the directors who are not parties written opinion to the Proceeding in question (“disinterested directors”)Board of Directors, even if less than a quorum, copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by the Board of Directors by a majority vote of a committee quorum consisting of disinterested directors designated by majority vote Disinterested Directors, or (B) if a quorum of disinterested directorsthe Board of Directors consisting of Disinterested Directors is not obtainable or, even if less than obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a quorum, (iii) by a vote of stockholders who are not at that time parties written opinion to the Proceeding in question holding Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by a majority of the outstanding shares members of stock the Board of all classes Directors, by the stockholders of the Company. If it is determined that Indemnitee is entitled to vote on indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the person making such determination with respect to Indemnitee’s right entitlement to indemnification indemnification, including providing to such person upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in response to a request by such person, shall be made only by independent legal counsel selected by Indemnitee and approved borne by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to irrespective of the Company and Indemnitee determination as to whether and Indemnitee’s entitlement to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ feesindemnification), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

Determination of Right to Indemnification. Any (a) To the extent Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter therein, including without limitation dismissal with or without prejudice, Indemnitee shall be indemnified against all Indemnifiable Losses relating to such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 7(b)) shall be required. (b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law that is a legally required condition to indemnification under this Agreement of Indemnitee hereunder against Indemnifiable Losses relating to such Indemnifiable Claim (a “Standard of Conduct Determination”) shall be made by the Company as follows: (i) unless a determination is made that indemnification Change of such Indemnitee is not proper in the circumstances because he Control has not met the applicable standards of conduct set forth in Sections 1 or 2occurred, as applicable, hereof. Any such determination shall be made (iA) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”)Disinterested Directors, even if less than a quorumquorum of the Board, or (B) if there are no such Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, by Independent Counsel in a written opinion addressed to the determination with respect to Indemnitee’s right to indemnification Board, a copy of which shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.delivered to

Determination of Right to Indemnification. Any Upon written request by Indemnitee for indemnification under this Agreement pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement thereto shall promptly be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a majority vote of the directors who are not parties written opinion to the Proceeding in question (“disinterested directors”)Board of Directors, even if less than a quorum, copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by the Board of Directors by a majority vote of a committee quorum consisting of disinterested directors designated by majority vote Disinterested Directors, or (B) if a quorum of disinterested directorsthe Board of Directors consisting of Disinterested Directors is not obtainable or, even if less than obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a quorum, (iii) by a vote of stockholders who are not at that time parties written opinion to the Proceeding in question holding Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by a majority of the outstanding shares members of stock the Board of all classes Directors, by the stockholders of the Company. If it is determined that Indemnitee is entitled to vote on indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the person making such determination with respect to Indemnitee’s right 's entitlement to indemnification indemnification, including providing to such person upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including reasonable attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in response to a request by such person, shall be made only by independent legal counsel selected by Indemnitee and approved borne by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to irrespective of the Company and Indemnitee determination as to whether and Indemnitee's entitlement to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ feesindemnification), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

Determination of Right to Indemnification. Any indemnification under 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in Section 4.1 or 4.2 of this Agreement shall be made by or in the defense of any claim, issue or matter described therein, the Company unless a determination is made that indemnification shall indemnify the Indemnitee against expenses actually and reasonably incurred by him in connection with the investigation, defense or appeal of such proceeding, or such claim, issue or matter, as the case may be. 8.2 In the event that Section 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall nonetheless indemnify the Indemnitee is not proper unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8.3 below that the circumstances because he Indemnitee has not met the applicable standards standard of conduct set forth in Sections 1 or 2, as applicable, hereof. Any required to entitle the Indemnitee to such determination indemnification. 8.3 The Indemnitee shall be made (i) by a majority vote entitled to select the forum in which the validity of the Company’s claim under Section 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company: (a) A quorum of the Board consisting of directors who are not parties to the Proceeding in question proceeding for which indemnification is being sought; (“disinterested directors”), even if less than a quorum, (iib) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of The stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on Company; (c) Legal counsel mutually agreed upon by the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (Board, which approval counsel shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its make such determination in a written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.opinion;

Determination of Right to Indemnification. Any Upon written request by Indemnitee for indemnification under this Agreement pursuant to the first sentence of Section 4(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a majority vote of the directors who are not parties written opinion to the Proceeding in question (“disinterested directors”)Board of Directors, even if less than a quorum, copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by the Board of Directors by a majority vote of a committee quorum consisting of disinterested directors designated by majority vote Disinterested Directors, or (B) if a quorum of disinterested directorsthe Board of Directors consisting of Disinterested Directors is not obtainable or, even if less than obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a quorum, (iii) by a vote of stockholders who are not at that time parties written opinion to the Proceeding in question holding Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by a majority of the outstanding shares members of stock the Board of all classes Directors, by the stockholders of the Company. If it is determined that Indemnitee is entitled to vote on indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the person making such determination with respect to Indemnitee’s right entitlement to indemnification indemnification, including providing to such person upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in response to a request by such person, shall be made only by independent legal counsel selected by Indemnitee and approved borne by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to irrespective of the Company and Indemnitee determination as to whether and Indemnitee’s entitlement to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ feesindemnification), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

Determination of Right to Indemnification. Any Anything contained elsewhere herein to the contrary notwithstanding, the determination as to whether or not Director has met the standard of conduct required to qualify and entitle Director to indemnification under the provisions of this Agreement shall may be made either by the Company unless a determination is made that indemnification Board of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made (i) by a majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”), even if less than a quorum, (ii) Directors by a majority vote of a committee quorum consisting of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of stockholders who are were not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the mattersuch action, voting as a single classsuit or proceeding, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected (who may be the outside counsel regularly employed by Indemnitee and approved Corporation) or by the Company stockholders of Corporation, provided that the manner in which (and, if applicable, the counsel by which) the right to indemnification is to be determined shall be approved in advance in writing by both the Board of Directors and by Director. In the event that such parties are unable to agree on the manner in which approval the determination of the right to indemnity is to be made, such determination may be made by independent legal counsel retained by Corporation especially for such purpose, provided that such counsel be approved in advance in writing by both the Board of Directors and Director and provided further, that such counsel shall not be unreasonably delayedoutside counsel employed by the Corporation. In the event that the Parties hereto are unable to agree on the selection of such outside counsel, conditioned such outside counsel shall be selected by lot by the outside counsel regularly employed by Corporation from among the Chicago law firms having more than one hundred attorneys and having a rating of "av" or withheldbetter in the then current Xxxxxxxxxx-Xxxxxxx Law Directory. Such selection by lot shall be made in the presence of Director (and his legal counsel or either of them, as Director may elect). Such The outside counsel regularly employed by Corporation and Director (and his legal counsel or either of them, as Director may elect) shall contact, in the order of their selection by lot, such law firms, requesting each such firm to accept engagement to make the determination required hereunder until one of such firms accepts such engagement. The fees and expenses of counsel in connection with making said determination contemplated hereunder shall be paid by Corporation, and, if requested by such counsel, among other things, Corporation shall render its give such counsel an appropriate written opinion agreement with respect to the Company payment of their fees and Indemnitee expenses and such other matters as to whether and to what extent Indemnitee would may be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretoreasonably requested by counsel.

Determination of Right to Indemnification. Any indemnification under (a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in subsections 4(a), 4(b) or 4(c) of this Agreement shall be made by or in the defense of any claim, issue or matter described therein, the Company unless a determination is made that indemnification shall indemnify the Indemnitee against expenses actually and reasonably incurred by him in connection with the investigation, defense, or appeal of such proceeding. (b) In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee is not proper unless, and only to the extent that, the Company shall prove by clear and convincing evidence to a forum listed in Subsection 8(c) below that the circumstances because he Indemnitee has not met the applicable standards standard of conduct set forth in Sections 1 or 2, as applicable, hereof. Any required to entitle the Indemnitee to such determination indemnification. (c) The Indemnitee shall be made (i) by a majority vote entitled to select the forum in which the validity of the Company's claim under Section 8(b) hereof that the Indemnitee is not entitled to indemnification will be heard from among the following: (1) A quorum of the Board consisting of directors who are not parties to the Proceeding in question proceeding for which indemnification is being sought; (“disinterested directors”), even if less than a quorum, (ii2) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of The stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, Company; (iv3) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal Legal counsel selected by Indemnitee the Indemnitee, and reasonably approved by the Company (Board, which approval counsel shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its make such determination in a written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.opinion; or

Determination of Right to Indemnification. Any indemnification under 8.1 To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in Section 4.1 or 4.2 of this Agreement shall be made by or in the defense of any claim, issue or matter described therein, the Company unless a determination is made that indemnification shall indemnify the Indemnitee against expenses actually and reasonably incurred by him in connection with the investigation, defense or appeal of such proceeding, or such claim, issue or matter, as the case may be. 8.2 In the event that Section 8.1 is inapplicable, or does not apply to the entire proceeding, the Company shall nonetheless indemnify the Indemnitee is not proper unless the Company shall prove by clear and convincing evidence to a forum listed in Section 8.3 below that the circumstances because he Indemnitee has not met the applicable standards standard of conduct set forth in Sections 1 or 2, as applicable, hereof. Any required to entitle the Indemnitee to such determination indemnification. 8.3 The Indemnitee shall be made (i) by a majority vote entitled to select the forum in which the validity of the Company's claim under Section 8.2 hereof that the Indemnitee is not entitled to indemnification will be heard from among the following, except that the Indemnitee can select a forum consisting of the stockholders of the Company only with the approval of the Company: (a) A quorum of the Board consisting of directors who are not parties to the Proceeding in question proceeding for which indemnification is being sought; (“disinterested directors”), even if less than a quorum, (iib) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a vote of The stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on Company; (c) Legal counsel mutually agreed upon by the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (Board, which approval counsel shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its make such determination in a written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.opinion;

Determination of Right to Indemnification. Any (a) To the extent that Indemnitee has been successful on the merits or otherwise in defense of any Indemnifiable Claim or portion thereof, including, without limitation, the dismissal of an action without prejudice, Indemnitee shall be indemnified against all Expenses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 1 and no Standard of Conduct Determination (as defined in Section 4(b) below) shall be required. (b) To the extent that the provisions of Section 4(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law that is a legally required condition precedent to indemnification under this Agreement of Indemnitee hereunder against Expenses relating to, arising out of or resulting from such Indemnifiable Claim (a “Standard Of Conduct Determination”) shall be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made follows: (i) by a the majority vote of the directors who are not parties to the Proceeding in question (“disinterested directors”)Indemnifiable Claim, even if less than a quorum, ; (ii) by a committee of such directors designated by the majority vote of a committee of disinterested directors designated by majority vote of disinterested such directors, even if less than a quorum, ; (iii) if there are no such directors, or such directors so direct, by Independent Counsel (as defined below) in a vote of stockholders who are not at that time parties written opinion to the Proceeding in question holding Board of Directors, a majority copy of the outstanding shares of stock of all classes entitled which shall be delivered to vote on the matter, voting as a single class, Indemnitee; or (iv) by independent legal counselthe Company’s stockholders. Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or (v) by a court of competent jurisdiction; providedpersons, howeverupon reasonable advance request, that if a Change in Control has occurred, the determination with respect any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion reasonably necessary to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretodetermination.

Determination of Right to Indemnification. Any indemnification (i) In the event Employee shall have been successful on the merits or otherwise in defense of any Proceeding, including dismissal without prejudice, Employee shall be indemnified against Indemnifiable Losses relating to, arising out of or resulting from such Proceeding in accordance with Section 10(a) and no Standard of Conduct Determination (as defined in Section 10(c)(iii)) shall be required with respect to such Proceeding. If Employee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one (1) or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Employee against all Indemnifiable Losses actually and reasonably incurred by her, or on her behalf, in connection with each successfully resolved claim, issue or matter to the extent permitted by applicable law or regulation or covered and paid under this Agreement a D&O Policy as defined below. (ii) In the event Employee shall have been finally adjudicated in any Proceeding (A) not to have acted in good faith and in a manner she reasonably believed to be in, or not opposed to, the best interests of the Company, and (B) with respect to any criminal Proceeding, to have had reasonable cause to believe his or her conduct was unlawful, Employee shall not be indemnified against Indemnifiable Losses relating to, arising out of or resulting from such Proceeding. (iii) In the event a Proceeding is compromised or settled prior to final adjudication so as to impose any liability or obligation upon Employee, Employee shall not be indemnified against Indemnifiable Losses relating to, arising out of or resulting from such Proceeding if there be a determination that Employee did not act in good faith and in a manner she reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal Proceeding, had no reasonable cause to believe her conduct was unlawful. Subject to Section 10(c)(v), a determination contemplated by the preceding sentence (a “Standard of Conduct Determination”) shall be made by the Company unless in good faith and on a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination shall be made reasonable basis: (iA) by a majority vote of the directors those Directors who are not parties to involved in such Proceeding (the Proceeding in question (“disinterested directorsDisinterested Directors”), even if less than a quorum, ; (iiB) by the stockholders; or (C) if directed by a majority of Disinterested Directors, by independent legal counsel in a written opinion, with a summary of the determination to be provided to Employee. However, if more than half of the Directors are not Disinterested Directors, the determination shall be made by (X) a majority vote of a committee of disinterested directors designated one or more Disinterested Director(s) chosen by majority vote of disinterested directorsthe Disinterested Director(s) at a regular or special meeting; (Y) the stockholders; or (Z) independent legal counsel chosen by the Board in a written opinion, even if less than with a quorum, (iii) by a vote of stockholders who are not at that time parties to the Proceeding in question holding a majority summary of the outstanding shares determination to be provided to Employee. Employee will reasonably cooperate (at the Company’s expense) with the person or persons making such Standard of stock of all classes entitled Conduct Determination, including providing to vote on the mattersuch person or persons, voting as a single classupon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Employee and reasonably necessary to such determination. (iv) The Company shall use its reasonable efforts to cause any Standard of Conduct Determination required under Section 10(c)(iii) to be made as promptly as practicable. If (x) a Standard of Conduct Determination shall not have been made within 60 days after a written claim for indemnification has been received by the Company or (y)(1) a Standard of Conduct Determination shall have been made that Employee is entitled to indemnification under this Agreement and (2) such applicable indemnification payment is not made within 30 days after such Standard of Conduct Determination, then, Employee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim; provided, that, in the case of clause (x), such 60-day period may be extended for a reasonable time, not to exceed an additional 60 days, if the person or persons making such determination in good faith requires such additional time for obtaining or evaluating any documentation or information relating thereto. In the event of such a suit: (A) Employee shall be entitled to be paid the expenses of prosecuting such claim; and (B) the failure of the Company (including its Board or any committee thereof, independent legal counsel, or (vstockholders) by to make a Standard of Conduct Determination shall not be a defense to the action and shall not create a presumption that indemnification is not permissible nor shall it create a presumption that indemnification is permissible. In the event that a Standard of Conduct Determination is made that Employee is not entitled to indemnification under this Agreement, Employee shall be entitled to an adjudication in a court of competent jurisdiction; providedjurisdiction of Employee’s entitlement to such indemnification or, howeverif requested in writing by Employee or the Company, that if in arbitration to be conducted by a Change in Control has occurred, panel of three arbitrators pursuant to the determination with respect to IndemniteeAmerican Arbitration Association’s Commercial Arbitration Rules. The Company shall not oppose Employee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company seek any such adjudication. (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee v) In making any Standard of Conduct Determination as to whether and to what extent Indemnitee would be permitted to be indemnified required under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ feesSection 10(c)(iii), claims, liabilities and damages arising out of the person or relating persons or entity making such determination shall presume that Employee is entitled to indemnification under this Agreement or its engagement pursuant heretoAgreement.

Determination of Right to Indemnification. Any A determination of the Indemnitee’s right to indemnification under this Agreement shall be made by the Company unless a determination is made that indemnification of such Indemnitee is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections 1 or 2, as applicable, hereof. Any such determination hereunder shall be made (i) by a the Board of Directors by majority vote of the a quorum consisting of directors who are not parties to the Proceeding in question (“disinterested directors”), even if less than a quorum, for which indemnification is being sought; (ii) if such a quorum of directors who are not parties to the Proceeding for which indemnification is being sought cannot be obtained, by a majority vote of a committee duly designated by the Board of disinterested Directors (all directors, whether or not parties to such Proceeding, may participate in such designation) consisting solely of two or more directors who are not parties to such Proceeding; (iii) if such a committee cannot be designated, by any Independent Counsel selected by the Board of Directors, as prescribed in (i) above or by the committee of the Board of Directors prescribed in (ii) above, in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee; or if a quorum of the Board of Directors cannot be obtained for (i) above and the committee cannot be designated under (ii) above, selected by majority vote of disinterested directorsthe full Board of Directors (in which directors who are parties to the Proceeding for which indemnification is being sought may participate); or (iv) if such Independent Counsel determination cannot be obtained, even by majority vote of a quorum of stockholders consisting of stockholders who are not parties to the Proceeding for which indemnification is being sought, or if less than a quorumno such quorum is obtainable, (iii) by a majority vote of stockholders who are not at that time parties to the Proceeding in question holding a majority of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control has occurred, the determination with respect to Indemnitee’s right to indemnification shall be made only by independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the independent legal counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant heretoProceeding.