Common use of Determination of Right Clause in Contracts

Determination of Right. Upon written request by Indemnitee for indemnification, such determination shall be made: (i) if a Change in Control shall have occurred, by Independent Counsel, unless Indemnitee shall request that such determination be made by the Board or the stockholders, in which case such determination shall be made in the manner provided for in clause (ii) of this Section 3.3(d), provided, however, that if such determination shall have been made by Independent Counsel, a copy of such written opinion shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of Disinterested Directors (even though less than a quorum) or (B) if such Disinterested Directors so direct, either (x) by a committee of Disinterested Directors, (y) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (z) by the stockholders of the Company, as determined by such quorum of Disinterested Directors, or a quorum of the Board, as the case may be. In either case, such determination shall be made within thirty (30) days of Indemnitee’s request for indemnification. The cost of any solicitation of the stockholders by the Company to obtain a determination under this Section 3.3 shall be paid by the Company. The Company may, at its option and pursuant to the determination under this Section 3.3(d), defer a decision on whether Indemnitee is entitled to indemnification or the amount of indemnification to which Indemnitee is entitled, if it believes, in good faith, that additional progress in the Proceeding is necessary before such final determination is made, provided that the Company provides Indemnification to the extent of Expense Advances, subject to Section 4.2, during such time as it defers such determination.

Determination of Right. Upon If the DGCL or applicable case law requires that a determination of Indemnitee’s entitlement to indemnification be made as a condition to Indemnification under this Agreement, then upon written request by Indemnitee for indemnification, such determination shall be made: (i) if a Change in Control shall have occurred, by Independent Counsel, unless Indemnitee shall request that such determination be made by the Board or the stockholders, in which case such determination shall be made in the manner provided for in clause (ii) of this Section 3.3(d3.3(c), provided, however, that if such determination shall have been made by Independent Counsel, a copy of such written opinion shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of Disinterested Directors (even though less than a quorum) or (B) if such Disinterested Directors so direct, either (x) by a committee of Disinterested Directors, (y) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (z) by the stockholders of the Company, as determined by such quorum of Disinterested Directors, or a quorum of the Board, as the case may be. In either case, such determination shall be made within thirty twenty (3020) days of Indemnitee’s request for indemnification. The cost of any solicitation of the stockholders by the Company to obtain a determination under this Section 3.3 shall be paid by the Company. The Company may, at its option and pursuant to the determination under this Section 3.3(d3.3(c), defer a decision on whether Indemnitee is entitled to indemnification or the amount of indemnification to which Indemnitee is entitled, if it believes, in good faith, that additional progress in the Proceeding is necessary before such final determination is made, provided that the Company provides Indemnification to the extent of Expense Advances, subject to Section 4.2, during such time as it defers such determination.

Determination of Right. Upon If the DGCL or applicable case law requires that a determination of Indemnitee’s entitlement to indemnification be made as a condition to Indemnification under this Agreement, then upon written request by Indemnitee for indemnification, such determination shall be made: (i) if a Change in Control shall have occurred, by Independent Counsel, unless Indemnitee shall request that such determination be made by the Board or the stockholders, in which case such determination shall be made in the manner provided for in clause (ii) of this Section 3.3(d3.3(c), provided, however, that if such determination shall have been made by Independent Counsel, a copy of such written opinion shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of Disinterested Directors (even though less than a quorum) or (B) if such Disinterested Directors so direct, either (x) by a committee of Disinterested Directors, (y) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (z) by the stockholders of the Company, as determined by such quorum of Disinterested Directors, or a quorum of the Board, as the case may be. In either case, such determination shall be made within thirty sixty (3060) days of Indemnitee’s request for indemnification. The cost of any solicitation of the stockholders by the Company to obtain a determination under this Section 3.3 shall be paid by the Company. The Company may, at its option and pursuant to the determination under this Section 3.3(d3.3(c), defer a decision on whether Indemnitee is entitled to indemnification or the amount of indemnification to which Indemnitee is entitled, if it believes, in good faith, that additional progress in the Proceeding is necessary before such final determination is made, provided that the Company provides Indemnification to the extent of Expense Advances, subject to Section 4.2, during such time as it defers such determination.

Determination of Right. Upon written request by Indemnitee for indemnificationNotwithstanding the foregoing, such determination the obligations of the Company under Section 2(a) shall be madesubject to the following conditions: (i) Following written demand for indemnification, the Reviewing Party shall make a determination (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 6 hereof is involved) that Indemnitee is permitted to be indemnified under applicable law. If there has been no determination by the Reviewing Party within thirty days (30) after written demand for indemnification made under Section 2(a) or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of California or the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board, and if there has been such a Change in Control shall have occurred(other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), by Independent Counsel, unless Indemnitee shall request that such determination be made by the Board or the stockholders, in which case such determination Reviewing Party shall be made the Independent Legal Counsel referred to in the manner provided for in clause Section 6 hereof. (ii) The obligation of this the Company to make an Expense Advance pursuant to Section 3.3(d)2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if such Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been made by Independent Counsel, a copy of such written opinion shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of Disinterested Directors (even though less than a quorum) exhausted or (B) if such Disinterested Directors so direct, either (x) by a committee of Disinterested Directors, (y) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (z) by the stockholders of the Company, as determined by such quorum of Disinterested Directors, or a quorum of the Board, as the case may be. In either case, such determination shall be made within thirty (30) days of Indemnitee’s request for indemnification. The cost of any solicitation of the stockholders by the Company to obtain a determination under this Section 3.3 shall be paid by the Company. The Company may, at its option and pursuant to the determination under this Section 3.3(dlapsed), defer a decision on whether Indemnitee is entitled to indemnification or the amount of indemnification to which Indemnitee is entitled, if it believes, in good faith, that additional progress in the Proceeding is necessary before such final determination is made, provided that the Company provides Indemnification to the extent of Expense Advances, subject to Section 4.2, during such time as it defers such determination.