Common use of Procedures for Determination of Entitlement to Indemnification Clause in Contracts

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to indemnification pursuant to this Agreement, Indemnitee shall deliver a written request for indemnification to the Company. This request must include documentation or information reasonably available to the Indemnitee which supports his or her claim. Determination of Indemnitee's entitlement to indemnification shall be made not later than 90 days after receipt of the request in a forum selected by the Company from the following alternatives: (i) The stockholders of the Company; (ii) A quorum of the Board of Directors of the Company (the "Board") consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented the Company or the Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators. (b) In the determination of entitlement to indemnification, Indemnitee shall be presumed to be entitled to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee of the determination within 90 days after the indemnification request, the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination of any Proceeding by judgment, order, settlement, or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnification, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, create a presumption that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's ’s entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request specific case; (i)if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a forum selected by written opinion to the Company from the following alternatives: (i) The stockholders Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity 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 attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee’s entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising him of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shell, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request specific case; (i)if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a forum selected by written opinion to the Company from the following alternatives: (i) The stockholders Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity 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 attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee's entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising him of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; PROVIDED, HOWEVER, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relived of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnification that are the most favorable permitted under Applicable Laws. Accordingly, the parties agree that the following procedures shall apply: (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to Association a written request for indemnification to the Company. This request must include request, including therewith such documentation or and information as is reasonably available to the Indemnitee which supports his or her claimand is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Determination The President of Indemnitee's entitlement to indemnification shall be made not later than 90 days after Association shall, promptly upon receipt of the such a request in a forum selected by the Company from the following alternatives: (i) The stockholders of the Company; (ii) A quorum of for indemnification, advise the Board of Directors of the Company (the "Board") consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which in writing that Indemnitee has not represented the Company or the Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsrequested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 2(a) above, a determination with respect to Indemnitee’s entitlement thereto shall be made by the vote of a majority of the Disinterested Directors of the Board within thirty (30) days after receipt of such request. (c) In making a determination with respect to entitlement to indemnification hereunder, the determination Board shall consider whether Indemnitee acted in good faith within the scope of Indemnitee’s employment or authority as Indemnitee could reasonably have perceived it under the circumstances and for a purpose Indemnitee could reasonably have believed under the circumstances was in the best interests of Association. (d) Indemnitee shall be deemed to have acted in good faith and in the best interests of Association if Indemnitee’s action is based on the records or books of account of Association, including financial statements, or on information supplied to Indemnitee by the officers of Association in the course of their duties, or on the advice of legal counsel for Association or on information or records given or reports made to Association by an independent certified public accountant or by an appraiser or other expert selected by Association. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of Association shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. (e) Indemnitee shall cooperate with the Board with respect to Indemnitee’s entitlement to indemnification, including providing to the Board upon reasonable advance request any documentation or information which is not privileged (but in the case of invoices in connection with legal services, any references to legal work performed or expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice) or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Board shall act reasonably and in good faith in making a determination regarding Indemnitee’s entitlement to indemnification under this Agreement. Absent any prohibition by Applicable Laws, any Expenses incurred by Indemnitee in so cooperating with the Board shall be presumed to be entitled to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee borne by Association (irrespective of the determination within 90 days after the indemnification request, the Indemnitee shall be absolutely entitled as to Indemnitee’s entitlement to indemnification), except as provided in Section 5. and Association hereby indemnifies and agrees to hold Indemnitee harmless therefrom. (f) The termination of any Proceeding Action or of any claim, issue or matter therein, by judgmentFinal Judgment, dismissal with or without prejudice, order, settlement, Settlement or arbitrationconviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification, indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, Association or with respect to any criminal action or proceedingAction, create a presumption that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shell, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request in a forum selected by the Company from the following alternatives: specific case; (i) The stockholders if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity 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 attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee's entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising him of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such -------- ------- objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relived of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, the Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including documentation or and information which is reasonably available to the Indemnitee and is reasonably necessary to determine whether the Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of a request for indemnification, advise the Board of Directors that the Indemnitee has requested indemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s request for indemnification hereunder shall be borne by the Company. (b) Upon written request by the Indemnitee for indemnification pursuant to Sections 4 and 5 hereof, the entitlement of the Indemnitee to indemnification pursuant to the terms of this Agreement shall be determined by the following person or persons, who shall be empowered to make such determination: (i) if requested by the Indemnitee, by Independent Counsel in a written opinion to the Board of Directors, a copy of which supports his shall be delivered to the Indemnitee; or her claim(ii) if not so requested, (A) by the Board of Directors of the Company, by a majority vote of a quorum (determined in accordance with the Bylaws) consisting of Disinterested Directors, or (B) if a quorum consisting of Disinterested Directors is not obtainable or if a majority vote of a quorum consisting of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee. Determination The Independent Counsel shall be selected by the Board of Indemnitee's Directors of the Company unless there shall have occurred within two years prior to the date of the commencement of the Proceeding for which indemnification is claimed a “Change of Control” as defined in the Company’s 2012 Long Term Incentive Plan in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. Such determination of entitlement to indemnification shall be made not later than 90 45 days after receipt of the request in a forum selected by the Company from of a written request for indemnification. If it is so determined that the following alternatives:Indemnitee is entitled to indemnification, payment to the Indemnitee shall be made within 15 days after such determination. (c) The Indemnitee shall be entitled to indemnification hereunder without a separate determination by or on behalf of the Company pursuant to Section 9(b) hereof with respect to any Proceeding and/or any claim, issue, or matter with respect thereto: (i) The stockholders which is resolved by agreement without any payment or assumption or admission of liability by the Company; Indemnitee; or (ii) A quorum of as to which a final decision on the Board of Directors of merits has been made by the Company (court or other body with jurisdiction over that Proceeding, in which the "Board") consisting of directors who are Indemnitee was not parties determined to the be liable with respect to such claim, issue, or matter for which indemnification is sought; (iii) Independent counsel which has not represented the Company or asserted against the Indemnitee in the past Proceeding; or any party (iii) as to which a court or arbitrator determines upon application that, despite such a determination of liability on the part of the Indemnitee, but in view of all the matter in which indemnification circumstances of the Proceeding and of the Indemnitee’s conduct with respect thereto, the Indemnitee is sought, as selected by Indemnitee fairly and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators. (b) In the determination of entitlement to indemnification, Indemnitee shall be presumed to be entitled to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee of the determination within 90 days after the indemnification requestfor such judgments, the Indemnitee shall be absolutely entitled to indemnificationpenalties, except as provided fines, amounts paid in Section 5. The termination of any Proceeding by judgment, order, settlement, and Expenses as such court or arbitrationarbitrator shall deem proper; provided, or upon a plea of nolo contendere or its equivalenthowever, such decision shall not of itself adversely affect the rights of Indemnitee to indemnification, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be have been rendered in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, create a presumption that the Proceeding for which the Indemnitee had reasonable cause to believe that his or her conduct was unlawfulseeks indemnification under this Agreement.

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's ’s entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request specific case; (i)if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a forum selected by written opinion to the Company from the following alternatives: (i) The stockholders Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity 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 attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee’s entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising her of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request specific case; (i)if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a forum selected by written opinion to the Company from the following alternatives: (i) The stockholders Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity 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 attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee's entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising him of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Indemnitee which supports his or her claim. Determination of Indemnitee's entitlement to indemnification shall be made not later than 90 days after Company shall, promptly upon receipt of the such a request in a forum selected by the Company from the following alternatives: (i) The stockholders of the Company; (ii) A quorum of for indemnification, advise the Board of Directors of the Company in writing that Indemnitee has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the "Board"first sentence of Section 5(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four (4) methods, which shall be at the election of Indemnitee: (1) by a majority vote of a quorum consisting of directors who are not parties to such proceeding, (2) if such quorum is not obtainable, by Independent Counsel in a written opinion, (3) by the matter for shareholders (within the meaning of Section 153 of the California Corporations Code), with the shares owned by Indemnitee not being entitled to vote thereon or (4) by the court in which indemnification is sought; (iii) Independent counsel which has not represented the proceeding is, or was pending upon application made by the Company or the Indemnitee agent or the attorney or other person rendering services in connection with the past defense, whether or any party in not the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved application by the Boardagent, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom attorney or other person is selected opposed by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators. (bc) In If the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof, the Independent Counsel shall be selected as provided in this Section 5(c). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be presumed made by the Board of Directors). Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1(f) above, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 5(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the state courts of the State of California or other court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 5(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 5(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 5(c), regardless of the manner in which such Independent Counsel was selected or appointed. (d) If the directors who are not parties to such proceeding or the shareholders are selected under Section 5 to determine whether Indemnitee is entitled to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee of the they shall not have made a determination within 90 one hundred eighty (180) days after the indemnification request, the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination of any Proceeding by judgment, order, settlement, or arbitrationdismissal, award, conviction, or upon a plea other disposition or partial disposition of nolo contendere any Proceeding or its equivalent, shall not of itself adversely affect any other event that could enable the rights of Indemnitee Company to determine Indemnitee’s entitlement to indemnification, create then the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a presumption that misstatement by Indemnitee did of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not act materially misleading, in good faith and in connection with the request for indemnification or (ii) a manner which he prohibition of such indemnification under applicable law. (e) Indemnitee shall cooperate with the person, persons or she reasonably believed to be in or not opposed to the best interests of the Company or, entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any criminal action documentation or proceedinginformation 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 attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, create a presumption that persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee had reasonable cause to believe that his or her conduct was unlawfulharmless therefrom.

Procedures for Determination of Entitlement to Indemnification. (a) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this Agreement, Indemnitee shall deliver submit to the Company a written request for indemnification to the Company. This request must include request, including therein or therewith such documentation or and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shell, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee which supports his or her claim. Determination has requested indemnification. (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination, if required by applicable law, with respect to Indemnitee's ’s entitlement to indemnification thereto shall be made not later than 90 days after receipt of in the request specific case; (i)if a Change in Control (as hereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a forum selected by written opinion to the Company from the following alternatives: (i) The stockholders Board of the Company; Directors, a copy of which shall be delivered to Indemnitee; or (ii) A if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity 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 attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person, persons or entity making such determination shall be borne by the Company (Irrespective of the "Board"determination as to Indemnitee’s entitlement to indemnification) consisting of directors who are not parties to the matter for which indemnification is sought; (iii) Independent counsel which has not represented and the Company or the hereby indemnifies and agrees to hold Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsharmless therefrom. (bc) In the event the determination of entitlement to indemnificationindemnification is to be made by Independent Counsel pursuant to Section 8(b) hereof, Indemnitee the Independent Counsel shall be presumed to selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the Independent Counsel shall be entitled to indemnification selected by the Board of Directors, and the Company has shall give written notice to Indemnitee advising him of the burden identity of proof to overcome that presumptionthe Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company fails advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to notify the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall have been selected and not objected to, either the determination within 90 days after Company or Indemnitee may petition the indemnification request, Court of Chancery of the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination State of Delaware or other court of competent jurisdiction for resolution of any Proceeding by judgment, order, settlement, objection which shall have been made the Company or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnificationthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other person as the Court shall designate, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, person with respect to whom all objections are so resolved or the person so appreciated shall act as Independent Counsel under Section 8(b) hereof. The Company shall pay any criminal action and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or proceedingappointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, create a presumption that Indemnitee had reasonable cause Independent Counsel shall be discharged and relived of any further responsibility in such capacity (subject to believe that his or her the applicable standards of professional conduct was unlawfulthen prevailing).

Procedures for Determination of Entitlement to Indemnification. (ai) Whenever Indemnitee believes that he or she is entitled to To obtain indemnification pursuant to under this AgreementArticle 4, an Indemnitee shall deliver submit to the Secretary of the Corporation a written request for indemnification to the Company. This request must include request, including such documentation or and information as is reasonably available to the Indemnitee which supports his or her claimand reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification (the "Supporting Documentation"). Determination The determination of the Indemnitee's entitlement to indemnification shall be made not later than 90 60 days after receipt by the Corporation of the written request in a forum selected by for indemnification together with the Company from the following alternatives: (i) Supporting Documentation. The stockholders Secretary of the Company;Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification. (ii) A The Indemnitee's entitlement to indemnification under this Article 4 shall be determined in one of the following ways: (A) by a majority vote of the Disinterested Directors (as hereinafter defined), if they constitute a quorum of the Board; (B) by a written opinion of Independent Counsel as hereinafter defined) if (x) a Change in Control (as hereinafter defined) shall have occurred and the Indemnitee so requests or (y) a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, a majority of such Disinterested Directors so directs; (C) by the shareholders of the Company Corporation (but only if a majority of the "Disinterested Directors, if they constitute a quorum of the Board") consisting , presents the issue of directors who are not parties entitlement to indemnification to the matter shareholders for which indemnification is sought;their determination); or (D) as provided in Section 4.4(c) of this Article 4. (iii) Independent counsel which has not represented In the Company or the Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators. (b) In event the determination of entitlement to indemnification, Indemnitee shall be presumed indemnification is to be entitled made by Independent Counsel pursuant to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee Section 4.4(b)(ii), a majority of the determination within 90 days after Disinterested Directors shall select the indemnification requestIndependent Counsel, but only an Independent Counsel to which the Indemnitee does not reasonably object; provided, however, that if a Change in Control shall have occurred, the Indemnitee shall be absolutely entitled select such Independent Counsel, but only an Independent Counsel to indemnification, except as provided in Section 5. The termination of any Proceeding by judgment, order, settlement, or arbitration, or upon which a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnification, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests majority of the Company or, with respect to any criminal action or proceeding, create a presumption that Indemnitee had reasonable cause to believe that his or her conduct was unlawfulDisinterested Directors does not reasonably object.

Procedures for Determination of Entitlement to Indemnification. (a) Whenever The Company shall not indemnify Indemnitee believes under Section 1(a) unless a determination has been made for a specific Action that he or she indemnification of Indemnitee is entitled to indemnification pursuant to this Agreement, permissible because Indemnitee shall deliver a written request for indemnification to has met the Company. This request must include documentation or information reasonably available to relevant standard of conduct set forth in Section 14-2-851 of the Indemnitee which supports his or her claim. Determination Georgia Business Corporation Code. (b) The standard of Indemnitee's entitlement to indemnification conduct determination shall be made not later than 90 days after receipt of the request in a forum selected by the Company from the following alternativesmade: (i) The stockholders If there are two or more Disinterested Directors, by the board of directors by a majority vote of all the Disinterested Directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the Companymembers of a committee of two or more Disinterested Directors appointed by such a vote; (ii) A quorum of By special legal counsel (A) selected in the Board of Directors of manner prescribed in Section 9(b)(i) or (B) if there are fewer than two Disinterested Directors, selected by the Company (the "Board") consisting board of directors (in which selection directors who are do not parties to the matter for which indemnification is sought;qualify as Disinterested Directors may participate); or (iii) Independent counsel By the shareholders, but shares owned by or voted under the control of a director who at the time does not qualify as a Disinterested Director may not be voted on the determination. (c) Indemnitee will cooperate with the person or persons making such determination, including providing to such person or persons, upon reasonable advance request, any documentation or information that is not privileged or otherwise protected from disclosure and which has not represented the Company or the Indemnitee in the past or any party in the matter in which indemnification is sought, as selected by reasonably available to Indemnitee and reasonably approved by the Board, which counsel shall make its determination in a written opinion; or (iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitratorsnecessary to such determination. (bd) In The Company shall use its reasonable efforts to cause the determination to be made as promptly as practicable. If (i) the person or persons empowered or selected to make the determination under Section 9(b)(i) or (b)(ii) shall not have made a determination within 30 days after the later of (A) receipt by the Company of written notice from Indemnitee advising the Company of the final disposition of the Action for which the Indemnitee seeks indemnification pursuant to this Agreement or (B) the selection of special legal counsel, if such determination is to be made by special legal counsel, and (ii) Indemnitee shall have fulfilled his or her obligations set forth in Section 9(c), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct, unless prohibited by applicable law and absent a material misstatement by Indemnitee in connection with the request for indemnification; provided that such 30-day period may be extended for a reasonable time, not to exceed an additional 30 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; and provided further that such 30-day period shall not apply if the determination of entitlement to indemnification, Indemnitee shall be presumed indemnification is to be entitled made by the shareholders pursuant to indemnification and the Company has the burden of proof to overcome that presumption. If the Company fails to notify Indemnitee of the determination within 90 days after the indemnification request, the Indemnitee shall be absolutely entitled to indemnification, except as provided in Section 5. The termination of any Proceeding by judgment, order, settlement, or arbitration, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the rights of Indemnitee to indemnification, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, create a presumption that Indemnitee had reasonable cause to believe that his or her conduct was unlawful9(b)(iii).