Common use of Right to Advancement of Expenses Clause in Contracts

Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.01, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII (which shall be governed by Section 7.03 (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled to advancement of expenses under Section 7.01 and this Section 7.02 or otherwise.

Right to Advancement of Expenses. In addition to To the right to indemnification conferred in Section 7.01extent not prohibited by law, an indemnitee the Company shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing atas herein further provided reimburse Indemnitee, participating in or defending any such proceeding in advance of its final disposition or determining Indemnitee’s entitlement to indemnification hereunder, for any expenses actually and reasonably incurred by Indemnitee in connection with a proceeding brought investigating, defending, responding to, settling or appealing any proceeding. Indemnitee shall also be entitled to establish or enforce a right reimbursement of any and all expenses actually and reasonably incurred by Indemnitee in preparing and submitting to the Company information to support requests for indemnification or advancement of expenses under this Article VII hereunder. Such advancement or reimbursement shall be made within twenty (20) days after the receipt by the Company of (i) a written statement or statements requesting such advances or reimbursement (which shall be governed include copies of invoices received by Section 7.03 (hereinafter an “advancement of expenses”)); providedIndemnitee documenting with reasonable particularity the services for which such expenses were incurred but, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance invoices in connection with legal services, no references to legal work performed or to expenditures made shall be required that, in a proceeding brought the reasonable judgment of Indemnitee’s counsel, would cause Indemnitee to establish or enforce a right to indemnification or advancementwaive any privilege accorded by applicable law) and (ii) upon request of the Company, an undertaking confirming Indemnitee’s obligation to repay the advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (if and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if extent that it shall is ultimately be determined by a court of competent jurisdiction in a final judicial decision from which there is no further right judgment, not subject to appeal (hereinafter a “final adjudication”) appeal, that such indemnitee Indemnitee is not entitled to be indemnified or by the Company against such expenses. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses. Indemnitee agrees that, without limiting the Company’s right to seek further written confirmation from Indemnitee to such effect, the execution and delivery of this Agreement by Indemnitee shall constitute an undertaking by Indemnitee to repay to the Company any advance of expenses made by the Company if and to the extent (and only to the extent) that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company against such expenses. The right to advancement of expenses under this Section 6 shall continue until final disposition of any proceeding, including any appeal thereof. Notwithstanding the foregoing, Indemnitee shall not be entitled to advancement of expenses under incurred in a proceeding commenced by Indemnitee for which indemnity is excluded pursuant to Section 7.01 and 10(b) of this Section 7.02 Agreement, provided that the Company shall make a determination with respect thereto within 20 days after receiving a request from Indemnitee for such advancement (but the Company shall not be precluded from thereafter making such determination based on additional facts or otherwiseinformation that becomes available to it).

Right to Advancement of Expenses. (a) In addition to the right to indemnification conferred in Section 7.016.1, an indemnitee shall shall, to the fullest extent permitted by law, also have the right to be paid by the Corporation the expenses (including attorney’s attorneys’ fees) incurred in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII (which shall be governed by Section 7.03 (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for that an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled to advancement of for such expenses under Section 7.01 and this Section 7.02 Article VI or otherwise. (b) Notwithstanding the foregoing Section 6.2(a), the Corporation shall not make or continue to make advancements of expenses to an indemnitee if a determination is reasonably made that the facts known at the time such determination is made demonstrate clearly and convincingly that the indemnitee acted in bad faith or in a manner that the indemnitee did not reasonably believe to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that the indemnitee had reasonable cause to believe his or her conduct was unlawful. Such determination shall be made: (i) by the Board of Directors by a majority vote of directors who are not parties to such proceeding, whether or not such majority constitutes a quorum; (ii) by a committee of such directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the indemnitee.

Right to Advancement of Expenses. In addition to To the right to indemnification conferred in Section 7.01extent not prohibited by law, an indemnitee the Company shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing atas herein further provided reimburse Indemnitee, participating in or defending any such proceeding in advance of its final disposition or determining Indemnitee’s entitlement to indemnification hereunder, for any expenses actually and reasonably incurred by Indemnitee in connection with a proceeding brought investigating, defending, responding to, settling or appealing any proceeding. Indemnitee shall also be entitled to establish or enforce a right reimbursement of any and all expenses actually and reasonably incurred by Indemnitee in preparing and submitting to the Company information to support requests for indemnification or advancement of expenses under this Article VII hereunder. Such advancement or reimbursement shall be made within twenty (20) days after the receipt by the Company of (i) a written statement or statements requesting such advances or reimbursement (which shall be governed include copies of invoices received by Section 7.03 (hereinafter an “advancement of expenses”)); providedIndemnitee documenting with reasonable particularity the services for which such expenses were incurred but, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance invoices in connection with legal services, no references to legal work performed or to expenditures made shall be required that, in a proceeding brought the reasonable judgment of Indemnitee’s counsel, would cause Indemnitee to establish or enforce a right to indemnification or advancementwaive any privilege accorded by applicable law) and (ii) upon request of the Company, an undertaking confirming Indemnitee’s obligation to repay the advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (if and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if extent that it shall is ultimately be determined by a court of competent jurisdiction in a final judicial decision from which there is no further right judgment, not subject to appeal (hereinafter a “final adjudication”) appeal, that such indemnitee Indemnitee is not entitled to be indemnified or by the Company against such expenses. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses. Indemnitee agrees that, without limiting the Company’s right to seek further written confirmation from Indemnitee to such effect, the execution and delivery of this Agreement by Indemnitee shall constitute an undertaking by Indemnitee to repay to the Company any advance of expenses made by the Company if and to the extent (and only to the extent) that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company against such expenses. The right to advancement of expenses under Section 7.01 and this Section 7.02 or otherwise.this

Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.01, an indemnitee shall also have the right to be paid by the Corporation the reasonable expenses (including attorney’s fees) incurred by the indemnitee in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII (which shall be governed by Section 7.03 7.03) (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an a signed, written undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled to advancement of expenses under Section Sections 7.01 and 7.02 or otherwise. Notwithstanding the foregoing, the Corporation shall have no obligation to make any payment provided in this Section 7.02 in the event the Board of Directors determines, in good faith, that the indemnitee seeking advancement of expenses has engaged in fraud or otherwisecriminal conduct relating to the subject matter of the proceeding in which the indemnitee is seeking advancement of expenses.

Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.011 of this Article VIII, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII VIII (which shall be governed by Section 7.03 3 of this Article VIII) (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or any advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses hereunder in connection with a proceeding (or part thereof) initiated by such indemnitee only if any such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled in connection with such proceeding. Notwithstanding the foregoing, unless otherwise determined pursuant to advancement Section 4 of expenses under Section 7.01 and this Section 7.02 Article VIII, no advance shall be made by the Corporation pursuant to this Section 2 to an officer of the Corporation with respect to any action or otherwiseomission occurring prior to the effectiveness of these Bylaws (except by reason of the fact that such officer is or was a director of the Corporation in which event this sentence shall not apply) in any proceeding if a determination is reasonably and promptly made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation.

Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.01XI(A), an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred by the indemnitee in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII XI (which shall be governed by Section 7.03 XI(C)) (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled to advancement of expenses under Section 7.01 XI(A) and Section XI(B). As used in this Section 7.02 Article XI, “expenses” shall include all attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or otherwiseexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a proceeding, or responding to, or objecting to, a request to provide discovery in any proceeding. Expenses also shall include expenses incurred in connection with any appeal resulting from any proceeding and any federal, state, local or foreign taxes imposed on the indemnitee as a result of the actual or deemed receipt of any payments under this Certificate of Incorporation, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by indemnitee or the amount of judgments or fines against indemnitee.

Right to Advancement of Expenses. In addition to the The right to indemnification conferred in Section 7.01, an indemnitee 8.1 shall also have include the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing at, participating in or defending any proceeding for which such proceeding right to indemnification is applicable in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII (which shall be governed by Section 7.03 (hereinafter an “advancement of expenses”)); provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall be responsible for an advancement of expenses in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board; provided, further, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancementrequires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or entitled to advancement of for such expenses under Section 7.01 and this Section 7.02 8 or otherwise. Notwithstanding the foregoing, unless such right is acquired other than pursuant to this Section 8, no advance shall be made by the Corporation to an officer of the Corporation (except by reason of the fact that such officer is or was a director of the Corporation, in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (a) by the Board of Directors by a majority vote of the disinterested directors, even though less than a quorum, or (b) by a committee of disinterested directors designated by majority vote of the disinterested directors, even though less than a quorum, or (c) if there are no disinterested directors or the disinterested directors so direct, by independent legal counsel in a written opinion to the Board of Directors, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation.