Common use of Right to Bring Suit Clause in Contracts

Right to Bring Suit. If a claim under Section 2 or 5 of this Article X is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. 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 indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard for indemnification set forth in the General Corporation Law of the State of Delaware (the “DGCL”), and (b) 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 indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. 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, under this Article X or otherwise shall be on the Corporation.

Right to Bring Suit. If In the event that (i) a claim under determination is made pursuant to Section 2 or 5 of this Article X 5.4 hereof that the Indemnitee is not paid in full entitled to indemnification under this Article, (ii) advancement of Expenses is not timely made pursuant to Section 5.3 hereof, (iii) Independent Counsel has not made and delivered a written opinion determining the request for indemnification (a) within 90 days after being appointed by the Corporation court, or (b) within 60 90 days after objections to his selection have been overruled by the court, or (c) within 90 days after the time for the Company or the Indemnitee to object to his selection, or (iv) payment of indemnification is not made within five days after a written claim has been received by the Corporation, except in the case determination of a claim for an advancement of expenses, in which case the applicable period shall be 20 daysentitlement to indemnification, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. 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 indemnitee Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not an adjudication in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard for indemnification set forth in the General Corporation Law appropriate court of the State of Delaware (the “DGCL”)Delaware, and (b) or in any suit brought other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses. In the event that a determination shall have been made that the Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 5.6 shall be conducted in all respects as a de novo trial on the merits and the Indemnitee shall not be prejudiced by reason of that adverse determination. If a determination shall have been made or deemed to have been made that the Corporation Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 5.6, or otherwise, unless the Indemnitee knowingly misrepresented a material fact in connection with the request for indemnification, or such indemnification is prohibited by law. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 5.6 that the procedures and presumptions of this Article are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all provisions of this Article. In the event that the Indemnitee, pursuant to this Section 5.6, seeks a judicial adjudication to enforce his rights under, or to recover an advancement of expenses pursuant to the terms of an undertakingdamages for breach of, this Article, the Corporation Indemnitee shall 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 such expenses upon a final judicial adjudication, but only if he prevails therein. If it shall be determined in such judicial adjudication that the indemnitee has Indemnitee is entitled to receive part but not met any applicable standard for indemnification set forth in the DGCL. Neither the failure all of the Corporation (including its directors who are not parties to such actionindemnification or advancement of Expenses sought, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination Expenses incurred by the Corporation (including its directors who are not parties to Indemnitee in connection with such action, a committee of such directors, independent legal counsel, judicial adjudication or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. 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, under this Article X or otherwise arbitration shall be on the Corporationappropriately prorated.

Right to Bring Suit. If In the event that a claim under Section 2 or 5 of this Article X determination is made that the Indemnitee is not paid in full by the Corporation within 60 days after entitled to indemnification hereunder or if payment is not timely made following a written claim has been received by the Corporationdetermination of entitlement to indemnification pursuant to Sections 9 and 10, except in the case of a claim for or if an advancement of expenses, in which case the applicable period shall be 20 daysExpenses is not timely made pursuant to Section 17, the indemnitee Indemnitee may at any time thereafter bring suit against the Corporation seeking an adjudication of entitlement to recover the unpaid amount such indemnification or advancement of the claim. If successful in whole or in part in Expenses, and 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 indemnitee shall be entitled brought in the Chancery Court. The Indemnitor shall not oppose the Indemnitee’s right to be paid also the expense of prosecuting or defending seek any such suitadjudication. In (a) any suit brought by the indemnitee Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee Indemnitee to enforce a right to an advancement of expenses) Expenses), it shall be a defense that the indemnitee Indemnitee has not met any applicable standard of conduct for indemnification set forth in the General Corporation Law laws of the State of Delaware (including the “DGCL”Delaware General Corporate Law), and (b) including the standard described in Section 4 or 5, as applicable. Further, in any suit brought by the Corporation Indemnitor to recover an advancement of expenses Expenses pursuant to the terms of an undertaking, the Corporation Indemnitor shall be entitled to recover such expenses Expenses upon a final adjudication judicial decision of a court of competent jurisdiction from which there is no further right to appeal that the indemnitee Indemnitee has not met any applicable the standard for indemnification set forth in the DGCLof conduct described above. Neither the failure of the Corporation Indemnitor (including its directors who are not parties to such actionthe Disinterested Directors, a committee of such directorsDisinterested Directors, independent legal counselIndependent Counsel, or its stockholdersshareholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee Indemnitee is proper in the circumstances because the indemnitee Indemnitee has met the applicable standard of conduct set forth in the DGCLdescribed above, nor an actual determination by the Corporation Indemnitor (including its directors who are not parties to such actionthe Disinterested Directors, a committee of such directorsDisinterested Directors, independent legal counselIndependent Counsel, or its stockholdersshareholders) that the indemnitee Indemnitee has not met such applicable the standard of conduct, conduct described above shall create a presumption that the indemnitee Indemnitee has not met the applicable standard of conduct described above, or, in the case of such a suit brought by the indemniteeIndemnitee, be a defense to such suit. In any suit brought by the indemnitee Indemnitee to enforce a right to indemnification or to an advancement of expenses Expenses hereunder, or brought by the Corporation Indemnitor to recover an advancement of expenses Expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article X Section 11 or otherwise shall be on the CorporationIndemnitor. If a determination is made or deemed to have been made pursuant to the terms of Section 9 or 10 that the Indemnitee is entitled to indemnification, the Indemnitor shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding, and enforceable. The Indemnitor further agrees to stipulate in any court pursuant to this Section 11 that it is bound by all the provisions of this Agreement and is precluded from making any assertions to the contrary. If the court shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Indemnitor shall pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings) to the fullest extent permitted by law, and in any suit brought by the Indemnitor to recover an advancement of Expenses pursuant to the terms of an undertaking, the Indemnitor shall pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such suit to the extent the Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of such suit, to the fullest extent permitted by law.

Right to Bring Suit. If In the event that (i) a claim under determination is made pursuant to Section 2 or 5 of this Article X 10.6 hereof that a Person is not paid in full entitled to indemnification under this Article, (ii) advancement of Expenses is not timely made pursuant to Section 10.5 hereof, (iii) Independent Counsel has not made and delivered a written opinion determining the request for indemnification (a) within ninety days after being appointed by the Corporation court, or (b) within 60 ninety days after objections to his selection have been overruled by the court, or (c) within ninety days after the time for the Company or such Person to object to his selection, or (iv) payment of indemnification is not made within five days after a written claim has been received by the Corporationdetermination of entitlement to indemnification, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. 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 indemnitee Person shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not an adjudication in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard for indemnification set forth in the General Corporation Law appropriate court of the State of Delaware (the “DGCL”)Delaware, and (b) or in any suit brought by the Corporation other court of competent jurisdiction, of his entitlement to recover an such indemnification or advancement of expenses pursuant to Expenses. In the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication event that the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit shall have been made that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. 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 Person is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10.8 shall be indemnifiedconducted in all respects as a DE NOVO trial on the merits and such Person shall not be prejudiced by reason of that adverse determination. If a determination shall have been made or deemed to have been made that a Person is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 10.8, or otherwise, unless such Person knowingly misrepresented a material fact in connection with the request for indemnification, or such indemnification is prohibited by Law. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to such advancement this Section 10.8 that the procedures and presumptions of expenses, under this Article X or otherwise are not valid, binding and enforceable and shall be on stipulate in any such court that the Corporation.Company is bound by all provisions of this Article. In the event that a Person, pursuant to this Section 10.8,