Common use of Right of Claimant to Bring Suit Clause in Contracts

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this Section that a claimant is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five days after a favorable determination of entitlement to indemnification has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Section, the claimant shall be entitled to bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Company) that the claimant did not meet the applicable standard of conduct which makes it permissible for the Company to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Company. Neither the failure of the Company (including its board of managers, Independent Counsel or its Members) to have made a determination before the commencement of such action that indemnification of the claimant is proper under the circumstances because he has met such applicable standard of conduct, nor an actual determination by the Company (including its board of managers, Independent Counsel or its Members) that the claimant has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) claim under Section 2 of this Section that a claimant Article is not entitled to indemnification under this Section, paid in full by the Corporation within ninety (x90) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five days after a favorable determination of entitlement to indemnification written claim has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionreceived by the Corporation, the claimant shall be entitled to may at any time thereafter bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and Corporation to recover the unpaid amount of his the claim, together with interest thereon, and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the CompanyCorporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the Delaware General Corporation Law (or other applicable law) for the Company Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the CompanyCorporation. Neither the failure of the Company Corporation (including or of its board full Board of managersDirectors, Independent Counsel its directors who are not parties to the Proceeding with respect to which indemnification is claimed, its stockholders, or its Membersindependent legal counsel) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the Delaware General Corporation Law (or other applicable law), nor an actual determination by the Company (including its board of managers, Independent Counsel any such person or its Members) persons that the such claimant has not met the such applicable standard of conduct, shall be a defense to the such action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. If a claim under Section 1 or Section 2 of this ARTICLE V is not paid in full by the corporation within (i) If ninety (w90) days after a determination is made pursuant to written claim for indemnification has been received by the procedures contemplated by Subsection (c) of this Section that a claimant is not entitled to indemnification under this Sectioncorporation, (x) advancement of Expenses is not timely made pursuant to paragraph or (ii) of Subsection thirty (b30) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five days after a favorable determination written claim for an advancement of entitlement to indemnification expenses has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionreceived by the corporation, the claimant shall be entitled to may at any time thereafter (but not before) bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and corporation to recover the unpaid amount of his the claim, together with interest thereon, or to obtain advancement of expenses, as applicable, and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith. It shall be a defense to any such action brought to enforce a right to indemnification (other than but not in an action brought to enforce a claim for Expenses incurred in defending any Proceeding in advance right to an advancement of its final disposition where the required undertaking, if any is required, has been tendered to the Companyexpenses) that the claimant did has not meet yet met the applicable standard standards of conduct which makes make it permissible under the DGCL (or other applicable law) for the Company corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the Companycorporation. Neither the failure of the Company corporation (including or of its board full Board of managersDirectors, Independent Counsel its directors who are not parties to the Proceeding, a committee of such directors, its stockholders, or its Membersindependent legal counsel) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL (or other applicable law), nor an actual determination by the Company corporation (including or of its board full Board of managersDirectors, Independent Counsel its directors who are not parties to the Proceeding, a committee of such directors, its stockholders, or its Membersindependent legal counsel) that the such claimant has not met the such applicable standard of conduct, shall be a defense to the such action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) claim under Paragraph A of this Section that a claimant Article TEN is not entitled to indemnification under this Section, paid in full by the Corporation within ninety (x90) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five days after a favorable determination of entitlement to indemnification written claim has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionreceived by the Corporation, the claimant shall be entitled to may at any time thereafter bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and Corporation to recover the unpaid amount of his the claim, together with interest thereon, and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the CompanyCorporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the DGCL (or other applicable law) for the Company Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the CompanyCorporation. Neither the failure of the Company Corporation (including or of its board Board of managersDirectors, Independent Counsel its Directors who are not parties to the Proceeding with respect to which indemnification is claimed, its shareholders, or its Membersindependent legal counsel) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL (or other applicable law), nor an actual determination by the Company (including its board of managers, Independent Counsel any such person or its Members) persons that the such claimant has not met the such applicable standard of conduct, shall be a defense to the such action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of claim under this Section that a claimant Article XI is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered paid in full by the Corporation within 30 days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of Corporation, except in the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment case of a claim for indemnification is not made within five days after a favorable determination an advancement of entitlement to indemnification has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionexpenses in which case the applicable period shall be 20 days, the claimant shall be entitled to Covered Person may at any time thereafter bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and Corporation to recover the unpaid amount of his the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Covered Person shall also be entitled to be paid the expense of prosecuting or defending such suit. It shall be a defense to any such action suit brought by a Covered Person to enforce a right to indemnification hereunder (other than an action a suit brought to enforce a claim for Expenses incurred in defending any Proceeding in advance advancement of its final disposition expenses where the required undertaking, if any is requiredany, has been tendered to the CompanyCorporation) that the claimant did not Covered Person has failed to meet the any applicable standard of conduct which makes it permissible for indemnification set forth in the Company to indemnify the claimant for the amount claimedDGCL, but the burden of proving such defense shall be on the Corporation. In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the CompanyCovered Person has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Company Corporation (including its board Board of managersDirectors or a committee thereof, Independent Counsel independent legal counsel, or its Membersstockholders) to have made a determination before prior to the commencement of such action suit that indemnification of the claimant Covered Person is proper under permissible in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL, nor an actual determination by the Company Corporation (including its board Board of managersDirectors or a committee thereof, Independent Counsel independent legal counsel, or its Membersstockholders) that the claimant Covered Person has not met the such applicable standard of conduct, shall be a defense to the action suit or create a presumption that the claimant Covered Person has not met the applicable standard of conductconduct or, and in the claimant case of such a suit brought by the Covered Person, be a defense to such suit). In any suit brought by a Covered Person to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Covered Person is not entitled to be indemnified, or to such advancement of expenses, under this Article XI or otherwise shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been madeCorporation. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (ia) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this Section that a claimant is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification or advancement of expenses under Section 11.1 is not made paid in full within five sixty (60) days after a favorable determination of entitlement to indemnification written claim therefor, supported by documentation reasonably requested by the Company, has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionreceived by the Company, the claimant shall be entitled to bring may at any time thereafter file suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and to recover the unpaid amount of his such claim and, if successful in whole or in part, shall be entitled to be paid the expense actually and reasonably incurred in prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is required, undertaking has been tendered to the Company) that the claimant did has not meet met the applicable standard of conduct which makes it permissible under the DGCL (as if the Company were a Delaware corporation) for the Company to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the Company. Neither the failure of the Company (including its board Board of managersDirectors, Independent Counsel independent counsel or its MembersShareholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL (as if the Company were a Delaware corporation), nor an actual determination by the Company (including its board of managers, Independent Counsel or its Members) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (iib) If To the fullest extent permitted under Delaware law, each Covered Person, or other Person to whom advancement of expenses or indemnification has been made hereunder, agrees that all actions for the advancement of expenses or indemnification brought under this Article 11 or otherwise shall be a claimant is successful matter to which Section 18-111 of the Act shall apply and which shall be brought exclusively in whole or in part in prosecuting any claim referred to in paragraph (i) the Court of this Subsection, Chancery. Each of the claimant shall also be entitled to recover from parties hereto agrees that the Court of Chancery may summarily determine the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim’s obligations to advance expenses (including attorneys’ fees) under this Article 11.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this claim under Section that a claimant 8.1 is not entitled to indemnification under this Section, paid in full by the Corporation within sixty (x60) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a courtCorporation, or twenty (z20) payment days in the case of a claim for indemnification advancement of expenses, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if such suit is not made within five days after a favorable determination of entitlement to indemnification has been made frivolous or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionbrought in bad faith, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is requiredany, has been tendered to the Companythis Corporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the DGCL for the Company Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Company. Neither the failure of the Company Corporation (including its board of managersBoard, Independent Counsel independent legal counsel, or its Membersstockholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he the claimant has met such the applicable standard of conductconduct set forth in the DGCL, nor an actual determination by the Company Corporation (including its board of managersBoard, Independent Counsel independent legal counsel or its Membersstockholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, and the claimant Corporation shall be entitled to recover such expenses upon a de novo trial final judicial decision from which there is no further right to appeal that the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the merits as to any such matter as to which no determination or an adverse determination has been madeCorporation. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) i. If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this Section that a claimant is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification or advancement of expenses under Section 15(a) is not made paid in full within five sixty (60) days after a favorable determination of entitlement to indemnification written claim therefor, supported by documentation reasonably requested by the Company, has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionreceived by the Company, the claimant shall be entitled to bring may at any time thereafter file suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and to recover the unpaid amount of his such claim and, if successful in whole or in part, shall be entitled to be paid the expense actually and reasonably incurred in prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is required, undertaking has been tendered to the Company) that the claimant did has not meet met the applicable standard of conduct which makes it permissible under the DGCL (as if the Company were a Delaware corporation) for the Company to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the Company. Neither the failure of the Company (including its board of managersthe Board, Independent Counsel the Company’s independent counsel or its the Members) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL (as if the Company were a Delaware corporation), nor an actual determination by the Company (including its board of managers, Independent Counsel or its Members) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. ii. To the fullest extent permitted under Delaware law, and each Covered Person, or other Person to whom advancement of expenses or indemnification has been made hereunder, agrees that all actions for the claimant advancement of expenses or indemnification brought under this Section 15 or otherwise shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful Section 18-111 of the Act shall apply and which shall be brought exclusively in whole or in part in prosecuting any claim referred to in paragraph (i) the Court of this Subsection, Chancery. Each of the claimant shall also be entitled to recover from parties hereto agrees that the Court of Chancery may summarily determine the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim’s obligations to advance expenses (including attorneys’ fees) under this Section 15.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) claim under Section 1 of ------------------------------- this Section that a claimant Article is not entitled to indemnification under this Section, paid in full by the Corporation within sixty (x60) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of corporation, except in the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment case of a claim for indemnification is not made within five days after expenses incurred in defending a favorable determination proceeding in advance of entitlement its final disposition, in which case the applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit against the corporation to indemnification has been made recover the unpaid amount of the claim and, to the extent successful in whole or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionin part, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It The claimant shall be presumed to be entitled to indemnification under this Article upon submission of a defense to any such action written claim (other than and, in an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition disposition, where the required undertaking, if any is required, undertaking has been tendered to the Company) corporation), and thereafter the corporation shall have the burden of proof to overcome the presumption that the claimant did is not meet the applicable standard of conduct which makes it permissible for the Company to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Companyso entitled. Neither the failure of the Company corporation (including its board of managersdirectors, Independent Counsel independent legal counsel or its Membersshareholders) to have made a determination before prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper under in the circumstances because he has met such applicable standard of conduct, nor an actual determination by the Company corporation (including its board of managersdirectors, Independent Counsel independent legal counsel or its Membersshareholders) that the claimant has is not met entitled to indemnification or to the applicable standard reimbursement or advancement of conduct, expenses shall be a defense to the action or create a presumption that the claimant has is not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been madeso entitled. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this claim under Section that a claimant 7.1 is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered paid in full by the corporation within 60 days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a courtcorporation, or (z) payment 20 days in the case of a claim for indemnification advancement of expenses, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if such suit is not made within five days after a favorable determination of entitlement to indemnification has been made frivolous or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionbrought in bad faith, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is requiredany, has been tendered to the Companythis corporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the Delaware General Corporation Law for the Company corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Company. Neither the failure of the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel, or its Membersstockholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the Delaware General Corporation Law, nor an actual determination by the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, and the claimant corporation shall be entitled to recover such expenses upon a de novo trial final judicial decision from which there is no further right to appeal that the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the WEST\224280779 368986‑000020 sf-3366658 corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the merits as to any such matter as to which no determination or an adverse determination has been madecorporation. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (iIf a request to be indemnified is made under Section 7.02) If (w) of VII, the Board of Directors shall make a determination is made pursuant to the procedures contemplated by Subsection (cSection 723(b) of this Section that a claimant the New York Business Corporation Law within 30 days after such request as to whether the person so requesting indemnification is not entitled to indemnification under this Section, (x) Article VII and the New York Business Corporation Law. If a request to be indemnified or for the reimbursement or advancement of Expenses expenses under Section 7.02 of Article VII is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification paid in full by the Corporation within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five 30 days after a favorable determination of entitlement to indemnification written claim has been made received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionin part, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the CompanyCorporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the New York Business Corporation Law or hereunder for the Company Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the CompanyCorporation. Neither the failure of the Company Corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersshareholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the New York Business Corporation Law or hereunder, nor an actual determination by the Company Corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersshareholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) claim under Section 1 of this Section that a claimant Article V is not entitled to indemnification under this Section, paid in full by the Corporation within thirty (x30) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered a written opinion as to entitlement to indemnification within 90 days after the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment of a claim for indemnification is not made within five days after a favorable determination written claim pursuant to Section 2 of entitlement to indemnification this Article V has been made received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionin part, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the CompanyCorporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than it permitted the Corporation to provide prior to such amendment) for the Company Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon on the CompanyCorporation. Neither the failure of the Company Corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel, or its Membersstockholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the DGCL, nor an actual determination by the Company Corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel, or its Membersstockholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been made. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this claim under Section that a claimant 7.1 is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered paid in full by the corporation within 60 days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a courtcorporation, or (z) payment 20 days in the case of a claim for indemnification advancement of expenses, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if such suit is not made within five days after a favorable determination of entitlement to indemnification has been made frivolous or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionbrought in bad faith, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is requiredany, has been tendered to the Companythis corporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the Delaware General Corporation Law for the Company corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Company. Neither the failure of the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he the claimant has met such the applicable standard of conductconduct set forth in the Delaware General Corporation Law, nor an actual determination by the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, and the claimant corporation shall be entitled to recover such expenses upon a de novo trial on judicial decision that the merits as to indemnitee has not met any such matter as to which no determination or an adverse determination has been madeapplicable standard for indemnification set forth in the Delaware General Corporation Law. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this claim under Section that a claimant 7.1 is not entitled to indemnification under this Section, (x) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered paid in full by the corporation within 60 days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of the lapse of time for objection or the overruling of objections or appointment of counsel by a courtcorporation, or (z) payment 20 days in the case of a claim for indemnification advancement of expenses, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if such suit is not made within five days after a favorable determination of entitlement to indemnification has been made frivolous or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionbrought in bad faith, the claimant shall be entitled to bring suit against be paid also the Company to establish his entitlement to expense of prosecuting such indemnification or advancement of Expenses and to recover the unpaid amount of his claim. It shall be a defense to any such action (other than an action brought to enforce a claim for Expenses expenses incurred in defending any Proceeding proceeding in advance of its final disposition where the required undertaking, if any is requiredany, has been tendered to the Companythis corporation) that the claimant did has not meet met the applicable standard standards of conduct which makes make it permissible under the Delaware General Corporation Law for the Company corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be upon the Company. Neither the failure of the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel, or its Membersstockholders) to have made a determination before prior to the commencement of such action that indemnification of the claimant is proper under in the circumstances because he or she has met such the applicable standard of conductconduct set forth in the Delaware General Corporation Law, nor an actual determination by the Company corporation (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) that the claimant has not met the such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, and the claimant corporation shall be entitled to recover such expenses upon a de novo trial final judicial decision from which there is no further right to appeal that the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the merits as to any such matter as to which no determination or an adverse determination has been madecorporation. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.

Right of Claimant to Bring Suit. (i) If (w) a determination is made pursuant to the procedures contemplated by Subsection (c) of this claim under Section that a claimant 1 hereof is not entitled to indemnification under this Section, paid in full by the Company within sixty (x60) advancement of Expenses is not timely made pursuant to paragraph (ii) of Subsection (b) of this Section, (y) Independent Counsel has not made and delivered days after a written opinion as to entitlement to indemnification within 90 days after claim has been received by the selection or appointment of counsel has become final by virtue of Company, except in the lapse of time for objection or the overruling of objections or appointment of counsel by a court, or (z) payment case of a claim for indemnification is not made within five days after a favorable determination an advancement of entitlement to indemnification has been made or deemed to have been made pursuant to Subsection (c) or (d) of this Sectionexpenses, in which case the claimant applicable period shall be entitled to twenty (20) days, Indemnitee may, but need not, at any time thereafter bring suit against the Company to establish his entitlement to such indemnification or advancement of Expenses and to recover the unpaid amount of his the claim. It If successful in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, Indemnitee shall be a defense entitled to be paid also the expense of prosecuting or defending such suit; provided, however, that if it shall be determined in any such action suit that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought, the expenses incurred by Indemnitee in connection with such suit shall be appropriately prorated. Indemnitee shall be presumed to be entitled to indemnification under this agreement upon submission of a written claim (other than and, in an action brought to enforce a claim for Expenses incurred in defending any Proceeding in advance an advancement of its final disposition expenses, where the required undertaking, if any is required, undertaking has been tendered to the Company) that Company and any other action required by the claimant did not meet the applicable standard of conduct which makes it permissible for Statute has been taken), and thereafter the Company to indemnify the claimant for the amount claimed, but shall have the burden of proving such defense shall be upon proof to overcome the Companypresumption that Indemnitee is not so entitled. Neither the failure of the Company (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) to have made a determination before prior to the commencement of such action suit that indemnification of the claimant Indemnitee is proper under in the circumstances because he has met such applicable standard of conductcircumstances, nor an actual determination by the Company (including its board Board of managersDirectors, Independent Counsel independent legal counsel or its Membersstockholders) that the claimant has Indemnitee is not met the applicable standard of conductentitled to indemnification, shall be a defense to the action suit or create a presumption that the claimant has Indemnitee is not met the applicable standard of conduct, and the claimant shall be entitled to a de novo trial on the merits as to any such matter as to which no determination or an adverse determination has been madeindemnification hereunder. (ii) If a claimant is successful in whole or in part in prosecuting any claim referred to in paragraph (i) of this Subsection, the claimant shall also be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in prosecuting such claim.